Volume 220 — South Western Reporter

<p>Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.</p> <p>Action by John D. and Irene G. Sutherland, his wife, against the Citizens’ State Bank. From judgment for defendant, plaintiffs appeal.</p>

<p>I.Pleading <§==>433(3) — Omission of allegation cured by finding.</p> <p>Where the petition sought cancellation of an oil lease for fraud and failure of consideration with respect to the agreement to drill a well within six months, the omission of an express allegation that defendants failed to begin drilling within the time agreed is not fundamental error, and is cured by findings of the court to that effect.</p> <p>2. Acknowledgment <§=58 — Petition against original party, alleging wife was not separately examined, held sufficient.</p> <p>In an action to cancel an oil lease of a homestead between the original lessors-and lessees, a petition alleging that the separate acknowledgment of the wife of lessor was not taken as required is sufficient, without alleging fraud or imposition in the taking of the acknowledgment.</p> <p>3. Acknowledgment <®=58 — Petition held to show notice of disqualification of notary.</p> <p>An allegation in a petition to cancel an oil lease that the officer who took the acknowledgment was the agent of lessees and interested in the lease was sufficient to show that lessees were charged with notice of his disqualification, and sufficient predicate for a finding of the court against the lease.</p> <p>4. Partnership <§=2I9(1)— Judgment canceling lease in firm’s name may be against partner.</p> <p>Where an oil lease was taken in the name of a company under which a partnership did business, and the petition to cancel alleged ¿he name of the partnership and of each individual member, and prayed judgment against all, it was proper to render judgment against all defendants.</p>

<p>1. Limitation of actions &wkey;>l87 — Where defendant urges limitations plaintiff must set up facts showing statute not applicable. •</p> <p>Where defendant by exception and plea urged limitations, it was incumbent upon plaintiff to file an amended petition or replication setting up such facts as he depended on to show that the cause of action should be considered for purpose of limitation as having acr crued qt a time within two years preceding the filing of the suit.</p> <p>2. Limitation of actions <©=>95(1) — Cause of action for agent’s misappropriation accrues at the time of the wrongful act.</p> <p>A cause of action for negligence by or for misappropriation by an agent accrues at the time of the wrongful act, and the statute commences to run at that time, and not at the time of ascertaining damages.</p> <p>3. Limitation of actions &wkey;>50(2) — Cause of action against agent accrued when settlement should have been made.</p> <p>Where plaintiff, who had engaged an agent to clear land under an arrangement that the agent should give orders for merchandise, sought to recover from the agent, on the theory that the orders exceeded the compensation agreed, the cause of action, whether deemed one arising out of misappropriation by an agent or an implied promise, accrued at the time the agent should have made settlement.</p> <p>4. Limitation of actions <&wkey;28(l) — That plaintiff allowed defendant engaged to blear land to give written orders on merchants did not render two-year statute applicable.</p> <p>Where plaintiff allowed defendant, whom he had engaged to clear land, to give written orders on merchants for merchandise, the fact that defendant gave written orders on merchants for part of the money and goods received does not render the two-year statute inapplicable, on the theory that the contract was one in writing.</p> <p>5. Limitation of actions <&wkey;l50(4) — Letter by defendant’s agent held not ácknowiedgment of plaintiff’s claim.</p> <p>Where defendant, who had cleared land for plaintiff, demanded an additional sum, and the demand, which was written by defendant’s agent, adverted to plaintiff’s claim, which was supposed to be a small one, and the letter showed that defendant' did not know the amount of plaintiff’s claim there was no acknowledgment of plaintiff’s claim so as to take the same out of the limitation statute.</p> <p>6. Appeal and error <&wkey;>!07l (5) — Correct judgment should not be reversed because of immaterial finding.</p> <p>Where the judgment was correct, it should not be disturbed because of findings of immaterial issues.</p> <p>7.Limitation of actions <&wkey;95(2) — Plaintiff held barred to sue agent where ignorance of his own claim due to his own negligence.</p> <p>Where plaintiff engaged defendant to clear land, arranging that orders of defendant for merchandise should be honored and after learning that the work had stopped plaintiff several times wrote defendant for settlement, and defendant did not by any fraud prevent plaintiff from ascertaining the amount of land cleared, held that, where plaintiff used no diligence to discover his claim which arose out of the fact that the orders for merchandise exceeded the value of the clearing, plaintiff cannot escape the running of limitations.</p>

<p>1. Judgment <&wkey;744 — Judgment ¡n suit to restrain cutting of timber conclusive in suit by plaintiff’s successors.</p> <p>Judgment on special finding by jury, in suit to enjoin cutting of timber brought by the successor of the grantee of timber on certain land against the successors of the grantor and original owner, held conclusive, in suit by buyers from the successor of the grantee against the successors of the grantor, that short-leaf pine timber was merchantable at the date of the original timber deed from the owner of the land.</p> <p>2. Trial <&wkey;>365 (I) — Verdict and finding construed in view of pleadings and issue.</p> <p>In a suit by the successor of the grantee of timber on certain land against the successors of the grantor, the original owner of the timber, to restrain cutting, verdict of the jury, including a special finding that short-leaf pine timber was merchantable at the date of timber deed, held, in view of pleadings and issue, not to have given buyers from the successor of the grantee all of the short-leaf pine timber regardless of size.</p> <p>3. Trial <&wkey;365(l) — Finding construed with issues.</p> <p>A finding must be construed in connection with the issues made by the pleadings and testimony.</p> <p>4. Trial <&wkey;347 — Special verdict held not improper as including general and special verdict.</p> <p>In a suit by the successor of the grantee of timber against the successors of the grantor, the original owner of the timber, to restrain cutting, in view of the pleadings and verdict, special verdict on the issue whether short-leaf pine timber was merchantable at the date of the timber deed, held, not improper, on ground jury cannot return a general and special verdict.</p> <p>5. Judgment &wkey;>725(6)- — Special finding held included in judgment and conclusive between parties.</p> <p>In a suit by the successor of the grantee of timber on certain land against the successors of the grantor, the original owner of the timber, to restrain cutting, judgment for defendants held to have necessarily included a special finding that short-leaf pine timber was merchantable at the date of the timber deed to render such finding conclusive on subsequent trial between the same parties.</p> <p>6. Logs and logging <&wkey;3(15) — Testimony as to what size of timber was merchantable admissible in suit to restrain cutting.</p> <p>In suit to restrain cutting of timber, testimony of certain witnesses as to what size of long-leaf timber was merchantable at the date of the deed, an issue not determined by prior litigation, held admissible.</p> <p>7. Logs and logging &wkey;>3(l5) — What timber merchantable at date of deed held for jury.</p> <p>In suit to restrain cutting of timber, the court properly submitted to jury what size timber was merchantable on the date of the timber deed, which conveyed only merchantable timber to be cut within a reasonable time, the question being for the jury to determine as to what size timber was in the minds of the parties when the word “merchantable” was used.</p> <p>8. Logs and logging <&wkey;3(IO) —' Meaning of “merchantable pine timber” as used in deed.</p> <p>The term “merchantable pine timber,” as used in a timber deed, meant such pine timber as was suitable for trade and sale, and which had a value on the market at the date of the deed, only such size timber as was ordinarily used for sawmill purposes in the vicinity.</p>

<p>1. Mines and minerals <&wkey;58 — One dollar sufficient consideration for oil lease.</p> <p>It cannot be said that $1 was an inadequate consideration for an oil lease, in the absence of a showing as to the value of the lease.</p> <p>2. Mines and minerals &wkey;>58 — Written oil lease presumed supported by consideration.</p> <p>A written oil lease imports a consideration, and, if $1 recited therein is not sufficient, other consideration might be presumed, in the absence of evidence to the contrary, to have been paid in order to uphold the written contract.</p> <p>3. Mines and minerals <®^58 — Oil lease construed not to give right to perpetually prevent carrying out main purpose.</p> <p>An oil lease providing that the lessee might prevent forfeiture from year to year by paying to the lessor $13.50 a year “until such well is commenced (which must be under two years from date),” held not invalid as giving the lessee the right to perpetually prevent the carrying out of the main purpose of the lease by the payment of yearly rentals without limitation of time.</p> <p>4. Mines and minerals <&wkey;>79(6) — Payment of rental supported lease, although original consideration was inadequate.</p> <p>Assuming that payment of $1, recited in oil lease, was not sufficient to support the contract, a payment of $13.50 and its acceptance by the lessor was sufficient to maintain the contract in force during the period that such payment would by the terms of the contract protect it from cancellation; the contract providing for an annual payment of such amount to prevent forfeiture for failure to begin a well.</p> <p>5. Mines and minerals &wkey;>79(4) — Instructions of lessor to own agent not to receive rental could not affect lessee.</p> <p>Where a bank was by the provisions of an oil lease the agent of the lessor for the receipt of moneys to be paid under the contract, instructions from the lessor to the bank not to receive a certain installment, which would by the terms of the contract protect it from cancellation for a year, of which instructions the lessee had no notice, could not affect the lessee.</p> <p>6. Mines and minerals <@^58 — Original consideration for oil lease sufficient to support agreement for surrender.</p> <p>The original consideration for an oil lease will also support an agreement in the lease that the lessee might surrender the lease' at any time.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Grace Lamkin against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Cherokee County Court; O. F. Gibson, Judge.</p> <p>Suit by the St. Louis Southwestern Railway Company of Texas against the Shields Grain & Coal Company and the Jacksonville Grain & Commission Company. From a judgment for defendants, plaintiff appeals. Reversed, and judgment rendered against the last-named defendant.</p> <p>January 18,1915, the Shields Grain & Coal Company, having sold a carload of maize to the Jacksonville Grain & Commission Company, f. o. b. the cars at Wellington, Tex., shipped same from that place, through Oklahoma, to Jacksonville, Tex. It appeared from the bill of lading covering the shipment that the carrier was to notify the grain and commission company when the maize reached Jacksonville, but same was to remain subject to the order of the grain and coal company. The sum due the carrier for transporting the maize according to the rate fixed by law was $238.70. The grain and commission company, having paid a draft drawn on it by the grain and coal company for the purchase price of the maize, presented the bill of lading to appellant, and demanded a delivery of the maize to it Appellant complied with the demand, collecting from the grain and commission company $127.10 as the freight due on the shipment, instead of $238.-70, the sum legally due. This was a suit by appellant against both the grain and coal company and the grain and commission company to recover of them $111.60, the difference between the sum the grain and commission company paid as freight on the shipment and the sum it should have paid. The trial court found that the suit was not commenced until April 13, 1917, which was more than two years after the right in appellant to sue for said $111.60 accrued, and, concluding that appellant’s right of action was therefore barred, rendered judgment that it take nothing by its suit.</p>

Denton, Judge. Suit by James P. Alexander against the National Equitable Society, George W. Bar-cus, receiver, and others. From a judgment for plaintiff, the defendants named appeal.

<p>Error from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Action by Emma Hadnot against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Bexar County Court; McCol-lum Burnett, Special Judge.</p> <p>Action by the Peacock Military College against J. M. Peirce. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Dallas County ; E. B. Muse, Judge.</p> <p>Suit by Gertrude Benton and another against W. M. Jones and others. From an adverse judgment, the plaintiffs appeal.</p>

<p>Appeal from District Court, Frio County; C. C. Thomas, Judge.</p> <p>Suit by Levy Cruz Duncan against San-nie Winters and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Montague County Court; W. T. Bussell, Judge.</p> <p>Action by B. Q. Kennedy against C. E. Schaff, receiver, and another. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Suit by M. A. Love and others against Negociación Agricola y Ganadera de San Enrique, S. A., a Mexican corporation, Alfonso Madero, and Otto R. Winter. From the judgment defendant company appeals.</p>

<p>1. Insurance <S=»755(2) — Provision in fraternal by-laws that no general officer has power of waiver invalid.</p> <p>Provision in the by-laws of a fraternal insurer that no officer of the Sovereign Camp should have power of waiver is not authorized by Rev. St. 1911, art. 4847, providing that the constitution, and laws of a benefit insurance society may provide that no subordinate body or its officers shall have the power to waive any provisions.</p> <p>2. Insurance <S=>724(2) — Notice to medical examiner is notice to insurer.</p> <p>Where a medical examiner was notified that the applicant had suffered from influenza, and such fact was noted in the report he made to the body having general authority over fraternal insurer, held, that the insurer was charged with knowledge of that fact, and cannot rely on the applicant’s statement that he had not suffered from disease, etc.</p> <p>3. Insurance <S=>724(3) — Insurer, with knowledge of facts, estopped to rely on false representations.</p> <p>An insurer is estopped to rely on false statements by insured as to his health, where report of medical examiner advised the insurer of true facts.</p> <p>4. Insurance <@=^8!9(2) — Finding that applicant was in good health held warranted.</p> <p>In an action on a benefit certificate, the jury’s finding, that insured was in good health at the time of the application and at the receipt of the certificate held warranted.</p>

<p>1. Appeal and error <@=>544(2) — Findings of fact alone considered on appeal without statement.</p> <p>On appeal from a judgment rendered after trial to the court in which the court made findings of fact and conclusions of law, where there was no statement of facts in the record, the Court of Appeals can look alone to the findings of fact to determine the rights of the parties.</p> <p>2. Insurance <§=>718 — Constitution and by-laws of benefit association form part of policy.</p> <p>The constitution and by-laws of a fraternal benefit association form part of the policy of insurance of one holding a benefit certificate therein.-</p> <p>3. Insurance <@=>817(1), 827 — Insured conclusively presumed to know constitution and by-laws of benefit association.</p> <p>The holder of benefit certificate in a fraternal benefit association is conclusively presumed to know the constitution and by-laws of the association which form part of his policy, so that a finding that he did not know a provision thereof will be disregarded.</p> <p>4. Insurance <@=748— Failure to give notice of engaging in saloon business forfeits certificate.</p> <p>Where the by-laws of a fraternal benefit association provided that a beneficiary certificate should .become null and void if insured engaged in the saloon business without giving notice to the clerk of the camp and paying an additional assessment, the failure of the beneficiary to give such notice after engaging in that business is an. absolute defense to recovery on the certificate unless the association is estop-ped to rely thereon.</p> <p>5. Insurance <@=>755(1) — Association not es-topped to forfeit in absence of reliance on failure to expel. ■</p> <p>Where the by-laws of a benefit association provided for the expulsion or other punishment of a member engaging in the saloon business and required notice and payment of additional assessments to avoid nullification of the benefit certificate, the beneficiary cannot recover on the theory that the association was estopped to rely on the defense that insured engaged in such business without giving the required notice without showing reliance by insured upon his being expelled in accordance with the bylaws.</p>

Action by Clois L. Green and others against W. M. Priddy, to recover an oil lease, in which Roberts and another intervene. Judgment for plaintiffs and intervener on directed verdict, and defendant appeals.

<p>Appeal from Dallas County Court; W. E. Thornton, Judge.</p> <p>Action by the Waskom Coal Company against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Corporations (&wkey;79 — Contract for compensation for procuring stock subscribers not invalid.</p> <p>Agreement by corporation to pay plaintiff 10 per cent, of the subscriptions obtained to the capital stock held not invalid, as in violation of Gen. & Sp. Laws 33d Leg. 1st Called Sess. (1913) c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1174a-1174p), relating to the validity of promotion contracts; there being no showing that the amounts were to be paid out of sums received from’ the subscribers, this conclusion being strengthened by the fact that plaintiff, when receiving payments in cash, did not deduct the amounts claimed.</p>

<p>Appeal from District Court, El Paso County; W. D. Howe, Judge.</p> <p>Alejandro Samaniego was convicted of theft, and he appeals.</p>

<p>Appeal from District Court, Kendall County; R. H. Burney, Judge.</p> <p>Action by Beulah Guidry against Arthur Vogt. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Insurance <&wkey;646(3) — Burden on insurer to show date of application as affecting truth of statement made therein.</p> <p>In an action on an insurance policy, where defendant claimed that insured had made a false answer to a question in her application regarding prior rejections, the date of the application being important, the burden was on the insurer to sustain its daim as to the date of the application; application haying been lost.</p> <p>2. Insurance <&wkey;668(6) — Whether insured falsely stated that she had not been previously rejecte'd held for jury.</p> <p>In an action on an insurance policy, whether or not the insured falsely stated in the application that she had not been rejected by any other insurance company held for the jury.</p>

<p>Appeal from District Court, Young County; Wm. N. Bonner, Judge.</p> <p>Suit by T. G. Gray and others against the Ingleside Independent School District and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Acknowledgment &wkey;>5, 6(3) — Not necessary to valid lease except of homestead.</p> <p>A joint lease or other conveyance by husband and wife is' valid without acknowledgment, or if the wife’s acknowledgment is defective, unless the property conveyed was the homestead.</p> <p>2. Homestead <&wkey;57l/2, 70 — Evidence held not to show land separated from dwelling was homestead.</p> <p>Though a piece of land separated from the tract on which the dwelling is situated may be so used as to make it a part of the homestead, testimony merely that land so situated was considered by owner as part of his homestead is not sufficient to establish that fact so as to justify a peremptory instruction.</p> <p>3. Mines and minerals <&wkey;>59 — Proved misrepresentations to procure oil lease held to vary from allegations.</p> <p>Where the petition alleged that defendant misrepresented that he was going to drill a well on a block of-land of which plaintiffs’ property would form part, misrepresentations, established by the evidence, that lessee would assign, to another who intended to and thereafter did drill a well, did not conform to. the pleadings, and plaintiff is not entitled to judgment thereon.</p> <p>4. Mines and minerals <&wkey;58 — $1 sufficient consideration for oil lease.</p> <p>A judgment canceling an oil lease for want of consideration cannot be sustained where it was undisputed that the lease was given in lieu of a former lease for which $1 was paid.</p> <p>5. Appeal and .error &wkey;150(2) — Requirement to pay costs gives right to appeal.</p> <p>Where the judgment canceling an oil lease required the lessee to pay costs, -he could appeal therefrom, though he had parted with his interest in the lease.</p>

Thomas, Judge. Action by J. M. McWhorter against Cus Bangley and others. From judgment for plaintiff against the named defendant, after dismissal as to the others, plaintiff appeals.

<p>Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.</p> <p>Action by J. A. James against W. J. & F. J. Powers. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Wharton County; Sam’l J. Styles, Judge.</p> <p>Action by Konstanti Pelipchyk against A. P. Borden. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County ; Charles E. Ashe, Judge.</p> <p>'Suit by Farmer Hamlett’s Company against the Areola Sugar Mills Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Judgment <8=929 — Lack of finality of foreign judgment sued on does not deprive court of jurisdiction.</p> <p>The court in which an action on foreign judgment is brought does not lack jurisdiction because the foreign judgment was not a final one.</p> <p>2. Appeal and error <8=854(2) — Wrong reason for court’s decision below does not require reversal. ■ ■ r ~</p> <p>That court gave as its reason for denying recovery on a foreign judgment that it had no jurisdiction because the judgment sued on was not a final one merely stated a wrong reason for a correct judgment and does not require reversal.</p> <p>3. Abatement and revival <8=82 — Pleas in abatement out of order immaterial where same issue was raised by exceptions.</p> <p>The fact that defendant’s plea in abatement was not filed in its proper order is immaterial where the same issues were raised by exceptions to the petition which were properly sustained.</p> <p>4. Evidence <8=80(1) — Law where judgment was rendered presumed same as law of forum.</p> <p>In the absence of evidence that the law of the state in which the foreign judgment sued on was rendered differed from the law of the state in which the suit on the judgment was brought, it will be presumed that the foreign law was the same as the law of the forum.</p> <p>5. Judgment <8=929 — Foreign judgment against two defendants reciting continuance as to third is not final.</p> <p>In an action against three defendants who were jointly and severally liable on the note sued on, a judgment against two defendants which recited that the case was continued as to the third defendant is merely interlocutory not final, and does not support an action thereon in another state.</p> <p>6. New trial <8= 103 — N ewly discovered evidence not discoverable by due diligence must relate to issue.</p> <p>A motion for a new trial in an action on a foreign judgment in which no issue was raised at the first trial as to the statutory law of the foreign state, based on a statute of the foreign state, of which plaintiff’s attorney had learned since the former trial, was properly overruled, since a motion for a new trial for newly discovered evidence must set forth evidence relating to an issue at the trial which could not have been discovered by'due diligence.</p>

<p>1. Judgment <5=3929 — Lack of finality of foreign judgment sued on does not deprive court of jurisdiction.</p> <p>The court in which an action on foreign judgment is brought does not lack jurisdiction because the foreign judgment was not a. final one.</p> <p>2. Appeal and error <5=3854(2) — Wrong reason for court’s decision below does not require reversal.</p> <p>That court gave as its reason for denying recovery on a foreign judgment that it had no jurisdiction because the judgment sued on was not a final one merely stated a wrong reason for a correct judgment and does not require reversal.,</p> <p>3. Judgment <5=929— Order of foreign court giving intervener lien on property to be sold under foreclosure decree is not final.</p> <p>An order of a court in another state giving intervener a lien on the property involved in a suit to be protected when the decree of foreclosure shall be entered in favor of plaintiff is an interlocutory order, not a final judgment, and cannot be made the basis for a suit within this state.</p> <p>4. Evidence <5=80(1) — Law where judgment was rendered presumed same as law of forum.</p> <p>In the absence of evidence that the-law of the state in which the foreign judgment sued on was rendered differed from the law of the state in which the suit on the judgment was brought, it will be presumed that the foreign law was the same as the law of the forum.</p> <p>5. New trial <5=403 — Newly discovered evidence not discoverable by due diligence must relate to issue.</p> <p>A motion for a new trial in an action on a foreign judgment in which no issue was raised at the first trial as to the law of the foreign state, based on a statute of the foreign state of which plaintiff’s attorney had learned since the former trial, was properly overruled, since a motion for a new trial for newly discovered evidence must set forth evidence relating to an issue at the trial which could not have been discovered by -due diligence.</p>

<p>1. Sequestration <S£wl8 — Claimant who did not file sworn plea and bond could not Intervene.</p> <p>In suit for debt and to foreclose chattel mortgage wherein plaintiff levied writ of sequestration on the property, claimant thereof could not intervene without filing sworn plea, under Vernon's Sayles’ Ann. Civ. St. 1914, art. 7769, setting up his ownership of the property, and also filing claimant’s bond.</p> <p>2. Sequestration <®= 18 — Intervention not showing interest in subject-matter should have been stricken.</p> <p>In suit for a debt and to foreclose chattel mortgage, wherein plaintiff levied writ of sequestration on property, intervening claimant’s plea based on conversion by plaintiffs, which did not show right to intervene by setting up interest in subject-matter of suit, debt sought to be collected, should have been stricken out, and judgment for the intervener thereon was improper.</p>

<p>1. Vendor and purchaser &wkey;j242— Burden to show no notice of vendor’s lien deed bn junior grantee.</p> <p>Where all rights in land acquired by defendant were through a junior conveyance, in order for him successfully to defend against prior unregistered deed, which retained vendor’s lien, burden rested on him to show he had no notice of prior conveyance.</p> <p>2. Vendor and purchaser <&wkey;235 — Only bona fide purchaser for value entitled to priority.</p> <p>To entitle subsequent vendee to have prior unregistered conveyance postponed to his subsequent conveyance, it must appear that he purchased in good faith without notice, actual or constructive, of prior vendee, purchase money being actually paid, recital in deed not being sufficient.</p> <p>3. Vendor and purchaser <&wkey;242 — Burden to prove notice of unregistered title on senior purchaser with equitable title.</p> <p>Burden to show notice to junior purchaser of land of senior purchaser’s unregistered title is on senior where he has only equitable title while the junior has legal title.</p> <p>4. Bills and notes <&wkey;357 — Transfer as collateral makes indorsee bona fide holder for value.</p> <p>When bill or note of third party payable to order is indorsed as collateral security for debt contracted at time of indorsement or before, indorsee is bona fide holder for value in usual course of business, entitled to protection against equities, offsets, and other defenses available between antecedent parties, if the bill or note when transferred as collateral is not overdue. ,</p>

Bryan, Special Judge. Action by L. E. Norton, administrator de bonis non. of the estate of George E. Chase, against the American Surety Company of New York and another. Judgment for plaintiff, and defendant named appeals.

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by the Roach-Manigan Paving Company of Texas against D. J. Sullivan. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Counties <&wkey; 105(1) — Construction of sea wail is “county business.”</p> <p>The construction of a sea wall within the limits of a city for the protection of the lives and property of the .inhabitants of the county is “county business” within the jurisdiction of the commissioners’ court under Const, art. 11, § 7, article 5, § 18, and Vernon’s Sayles’ Ann. ■Civ. St. 1914, art. 5585.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, County Business.]</p> <p>2. Counties ©=o| 13(5) — Can employ attorney to aid) in procuring sea wall.</p> <p>The commissioners’ court, having broad power to construct a sea wall, has authority to employ an attorney to aid in carrying out that power.</p> <p>3. Counties <5&wkey; 15W/z — Payment to attorney who secured rights for sea wail constructed by government not grant to government.</p> <p>Where a¿ extension of a sea wall was necessary for the protection of the lives and property of inhabitants of a county but the greater part of the wall was built by the federal government, payment by the county to the attorney who secured the government’s consent to the construction and procured title to the right of way to other land desired by the government was not invalid as a grant to the government.</p> <p>4. Counties <i&wkey;l 13(5) — Contract for attorney’s services held not extra compensation.</p> <p>. ’ A contract between county authorities and an attorney fixing the compensation of the attorney for services in procuring the consent of the government to aid in constructing a sea wall within the county and, to procure rights of way and other necessary titles is not invalid as a grant of extra compensation contrary to Const, art. 3, § 53, though part of the services had been rendered before the contract was signed, where total compensation was less than the reasonable fee for the services.</p> <p>5. Counties &wkey;>50 — Commissioners’ court may delegate selection of attorney and fixing compensation.</p> <p>After the commissioners’ court has passed a resolution directing the employment of counsel for a specified purpose, it may delegate to the county judge and chairman of the finance com- ' mittee ministerial executive duties of selecting the attorney and fixing his compensation.</p> <p>6. Counties <&wkey;!24(2) — Acceptance of attorney’s services ratified contract of employment.</p> <p>The acceptance by the commissioners’ court of the services of an attorney rendered under a contract made in behalf of the county by the county judge and chairman of the finance committee is a ratification of the contract which makes it binding on the county, though it was not formally approved by the commissioners’ court.</p> <p>7. Contracts <©=» 126 — Public appearance by attorney before committee of Congress is not “lobbying.”</p> <p>The. public appearance by an attorney employed by a county before the river and harbors committee of Congress, to explain and urge its approval of a proposed improvement, without attempt to use personal influence, is not “lobbying,” and a contract for such services is not contrary to public policy.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lobby.]</p>

<p>Appeal from District Court, Kendall County ; R. H. Burney,- Judge.</p> <p>Suit by Mrs. Eugenia Poss against P. Kuhlmann, administrator of the estate of William Kuhlmann, deceased. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by B. P. Schulze against the Bankers’ Trust Company. Prom a judgment for plaintiff, defendant appeals.</p>

D. Harvey, Judge. Action by J. W. Davidson and another against the Guarantee Life Insurance Company and another. General demurrer to petition sustained, and plaintiffs appeal.

<p>1. Telegraphs and telephones &wkey;>65(6) — Petition held to allege agreement to deliver message in country.</p> <p>A petition, alleging that the agent receiving the message for transmission was told that addressee lived in the country, necessitating delivery by messenger, the cost of which was guaranteed, held, to show agreement to deliver in the country, notwithstanding a further allegation of agreement to deliver message to addressee at the station to which it was transmitted, and hence a showing that he was at the station was unnecessary.</p> <p>2. Pleading <&wkey;34(I) — Pleading not construed as a whole on special exception.</p> <p>The rule that all parts of a pleading will be considered to give effect to intention of pleador is not applicable against a special exception.</p> <p>3. Telegraphs and telephones &wkey;>73(l) — Negligence in failing to deliver message at country home held question for jury.</p> <p>In an action for failure to deliver telegram at a home in the country, evidence to show that addressee was at the home when delivery should have been made held, sufficient to justify the refusal of a peremptory instruction for the telegraph company.</p> <p>4. Evidence <&wkey;47l(24) — Testimony that funeral would have been delayed if telegram had been delivered held not opinion.</p> <p>In sister’s action for failure to deliver message requesting brother to postpone burial of father, brother’s testimony that he would have postponed burial until sister had arrived held admissible against contention that it was a mere expression of opinion.</p> <p>5. Evidence <§=3 127(2) — Expression of mental feelings competent where feelings are the subject of injury.</p> <p>Where mental feelings are the subject of injury, the usual natural sign and expression of such feeling made at the time are competent evidence of such feelings.</p> <p>On Motion for Rehearing.</p> <p>6. Courts <@=97(5) — Court of Civil Appeals will follow state Supreme Court on federal question not determined by federal courts.</p> <p>Where the effect of an act of Congress has not been authoritatively settled by the Supreme Court of the United States, the Court of Civil Appeals will follow the decisions of the state Supreme Court.</p> <p>7. Telegraphs and telephones <&wkey;68(2) — Mental anguish alone not recoverable for non-of interstate message.</p> <p>nder Act Cong. June IS, 1910, § 7 (U. S. . St. § 8563) placing telegraph companies the jurisdiction of the Interstate Commerce Commission, and in view of Interstate Commerce Act, § 15, as amended (U. S. Comp. St. § 8583), telegraph company is not liable for failure to deliver telegram, where the only damage claimed to have been sustained is mental anguishA</p>

<p>1. Process <&wkey;6 — Reservice of citation on bringing in of new plaintiff not necessary.</p> <p>Where, in an action for injuries to plaintiff’s wife, defendant moved for a peremptory instruction on the ground that such damages were not recoverable by the husband, whereupon he filed an amended petition making the wife a party plaintiff, it was not necessary to again'serve defendant with citation.</p> <p>2. Appeal and error &wkey;>883 — Defendant participating in trial estopped to object that citation was not reserved.</p> <p>Where, on amendment of the petition to join plaintiff’s wife as plaintiff in an action for injuries to her, defendant was offered by the court the right to withdraw its announcement of ready and have the cause continued and recover all costs incurred up to that time, but declined to avail itself of such ruling and merely excepted to the ruling permitting the amendment and participated in the trial taking its chance of a favorable result, it could not, .after judgment against it, contend that the proceedings were invalid for failure to serve it with citation after the amendment.</p> <p>3. Husband and wife &wkey;?204 — Husband may sue for injuries to wife, though damages are her separate property. ‘</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1839, authorizing the husband to sue alone or jointly with the wife for the recovery of her separate property, is not in conflict with or repealed by Acts 35th Leg. (1917) c. 194 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4621), giving the wife the sole management, disposition, and control of her separate property, and the husband may therefore sue for personal injury to the wife, though the damages are her separate property under Acts 34th Leg. (1915) c. 54 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4621a).</p> <p>4. Husband and wife <&wkey;l37(I) — Husband not authorized to interfere with control or disposition of wife’s property.</p> <p>The authority conferred on the husband by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1839, to sue for the recovery of the wife’s separate property, only makes him her agent for the protection of her property and confers no authority to interfere with her management, control, or disposition of the property.</p> <p>5. Husband and wife &wkey;>229(2) — Husband suing for wife’s injuries need not allege that suit is brought for her benefit.</p> <p>In a husband’s action for injuries to his wife under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1839, the petition need not allege that the suit is brought by the husband as agent of the wife or for her benefit.</p> <p>6. Carriers <&wkey;4l6 — Under petition carrier not entitled to exclusion of injuries caused by open window in sleeper.</p> <p>Where the petition alleged and the evidence showed that a passenger was compelled to vacate a warm bed in a drawing room and take a cold berth in the sleeper, it was immaterial how the berth became cold, and, in the absence of contributory negligence with respect to an open window, the carrier was not entitled to have the damages sustained by reason of the open window excluded, though the petition did not allege negligence respecting the open window.</p> <p>7. Carriers <&wkey;4l6 — Injuries held proximate result of compelling passenger to change berth.</p> <p>Where a passenger was compelled to vacate a drawing room and take a cold berth in a sleeper, where she contracted a severe coxu, causing neuralgia which affected her teeth and required the removal of two of them, and as a result of such sickness she was unable to pursue her occupation of music teacher, the damages on account of the injury to and loss of teeth and the loss of earnings were the proximate result of the negligence of the carrier.</p> <p>8.Carriers <&wkey;>3!9(3) —. $2,000 for injuries caused by taking cold not excessive'.</p> <p>Where a passenger compelled to vacate a drawing room and take a cold berth in the sleeper contracted a severe cold, which continued for several weeks affecting her face and throat and producing neuralgia, inflammation, and soreness of the throat, and the neuralgia finally affected her teeth and required the removal of two teeth, and as a result of her sickness she was unable to pursue her occupation of music teacher, at which she was earning $25 a day for several weeks, a verdict of $2,000 was not excessive.</p>

<p>Appeal from District Court, Brooks County; Y. W. Taylor, Judge.</p> <p>Suit for divorce by Frank H. Knight against Lillie E. Knight. From a decree denying divorce, plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by O. H. Nicholson against the Houston Electric Company and another. Judgment for defendants on directed verdict, and plaintiff appeals.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Action by Walter D. Manley against the Independent Order of Puritans. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Time <§=39(19) — Where so used the word “by” will be construed as “on or before.”</p> <p>Where contracts which provided that plaintiff’s right should not come into being unless another failed' to procure an irrigation contract by November 1st, and other portions of the contracts used the words “on or before” November 1st, the word “by” must be so construed.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, By.]</p> <p>2. Time (i0) — Where act was required to be done by given day the word “by” includes that day.</p> <p>Where a contract required an act to be done by November 1st, the word “by” must be construed as on or before or not later than, the two contracts which were involved showing that the word was not used as equivalent to “before.”</p> <p>3. Pleading <§=38(11) — Averments as to passage of title are conclusions. -</p> <p>Averments in the petition that, on failure of a third person to obtain a contract, title to the property involved became and was vested in defendant, which held deeds thereto, are mere conclusions of the pleader.</p> <p>4. Escrows <§=39 —Title did not pass under deeds held in escrow upon grantor’s default.</p> <p>Where purchaser of land who was in default executed deeds which were held in escrow, and were not delivered unless he failed to obtain an irrigation contract, in which case the vendor was given an option to declare deeds to be absolute conveyances, or sell the land under judicial sale, title did not pass by virtue of the deeds, which were unrecorded, on the purchaser’s failure to perform.</p> <p>5. Contracts <§=3186(1) — 'Third person held to have'no rights under contract between others in absence of privity.</p> <p>In an action for breach of contract entered into by plaintiff with the vendor, whose purchaser had defaulted, but whose default was to be excused if he procured irrigation contract, held that, under the contracts as a whole, plaintiff had no rights under his contract entered into at the same time the agreement was made with the purchaser, unless there was privity of contract between plaintiff and purchaser.</p>

M. Bowen, Judge. Action by D. A. Paddleford & Son against J. C. Watson and S. D. Beaver. Judgment against defendant Beaver by default, and judgment against defendant Watson, and defendant Watson appeals.

<p>Appeal from Dallas County Court; W. F. Thornton, Judge.</p> <p>Suit by Will Blair against the Millers’ Indemnity Underwriters. Judgment of dismissal, and plaintiff appeals.</p>

<p>Error from District Court, McLennan County; Geo. N. Denton, Judge.</p> <p>Action by Martha C. Glenn and another against the Southern Traction Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from District Court, Hamilton County; J. H. Arnold, Judge.</p> <p>Action by the W. T. Rawleigh Company against J. F. Marshall and others. From a Judgment for defendants, plaintiff appeals.</p>

<p>Negligence <&wkey;>l42 — Verdict for plaintiff involved finding of no contributory negligence.</p> <p>Where the court submitted the question of plaintiff’s contributory negligence, as well as defendant’s negligence, a verdict for plaintiff involved a finding that plaintiff was not contribu-torily negligent.</p>

<p>Appeal from District Court, Harris County ; Charles E. Ashe, Judge.</p> <p>Suit by the Fortson Grocery Company against the Pritchard Rice Milling Company. From judgment for defendant, plaintiff appeals.</p> <p>This was a suit by the grocery company against the milling company for damages for an alleged breach by the latter of a contract to sell and deliver a car load of rice to the former. From the testimony at the trial and findings of the court below it appears that on November 8, 1916, the grocery company at Corsicana and the milling company at Houston entered into a contract in writing whereby the latter agreed: (1) To sell the former a carload (40,000 pounds) of rice of a specified grade at 4 cents a pound, less brokerage; and (2) to deliver same f. o. b. the cars at Houston when the grocery company furnished it shipping instructions. No time within which such instructions were to be furnished was specified in the contract. The grocery company contended that the tíme was optional with it, but the court found that a custom and usage, binding on the parties, fixed the 10 days following the making of the contract as the time within which the grocery company was to furnish the shipping instructions. November 10, and again December 7, 1916, the milling company by letter requested the grocery company to furnish the instructions, and, receiving no reply, on December 18 wrote the grocery company, inquiring if it was its intention to repudiate the contract, and advising, if it was, that it would sell the rice for its (the grocery company’s) account. December 19 the grocery company replied that it did not intend to repudiate the contract, stated that it was crowded for room in which to store the rice, and asked the milling company to give it “a little more time” in which to move same. December 20 the milling company replied, stating that it, too, was crowded for room, and added that it would be glad if the grocery company would furnish it shipping instructions “at the earliest ■ opportunity.” There was no other communication between the parties until March 30, 1917, when the grocery company wrote the milling company, ordering the rice shipped and giving shipping instructions. At that time the value of rice had advanced practically 100 per cent, beyond the value it had at the time the contract was made. April 2, 1917, the milling company, replying to the grocery company’s letter of March 30, said, “It is true,” quoting, “we sold you a car of rice last October, but you refused to accept it and sale was canceled long ago.” However, the parties never agreed on a cancellation of the contract, and the grocery company did not know before it received the letter last referred to that the milling company expected to treat it as no longer binding on it. The trial court found that, at the time the milling company acquiesced in the grocery company’s request for “a little more time in which to move the rice,1” it was “the intention of the parties that the grocery company should still furnish the milling company shipping instructions within a reasonable time,” and further found that — •</p> <p>“Taking into consideration the character of the commodity, the fluctuation of its market price, and the intention of the parties, both buyer and seller, as reflected by their letters, telegrams, and conduct, from December, 1916, to April, 1917, or more than three months, was an unreasonable time for the grocery company .to wait to furnish the milling company shipping instructions on said car of rice.”</p> <p>Being of the opinion that the milling company was “justified,” quoting, “in considering the order canceled,” and that no obligation rested on it “to notify the grocery company of such cancellation,” the trial court rendered judgment that the grocery company take nothing by its suit.</p>

<p>Appeal from District Court, Van Zandt County; Joel R. Bond, Judge. Suit by A. T. Mann against J. L. Lybrand. From an adverse judgment, defendant appeals.</p>