Volume 221 — South Western Reporter

<p>1. Reformation of instruments t§=»25 — Equity will not relieve from unilateral mistake where there is negligence.</p> <p>Where a party executing preliminary contract accepted a deed providing for his keeping open a permanent roadway on land conveyed, in the absence of showing of fraud or excuse for failure to read the instruments, reformation thereof could not be had on the ground of accident, fraud, or mistake.</p> <p>2. Easements <@=58(3) — Whether grantee entitled to unobstructed way depends on terms of grant and circumstances.</p> <p>Whether the grantee of a right of way is entitled to a way unobstructed by gates or bars depends upon the terms of the grant, .the provision for which it was made, the nature and situation of the property, and the manner in which it has been used.</p> <p>3.- Easements <®=»58(3) — Grantee entitled to keep right of way obstructed by gates; “keep open.”</p> <p>Under a deed wherein grantee was to “keep open” a way so that grantor and assigns “may have access to public road,” the grantor was not entitled to a roadway unobstructed by gates.</p> <p>4. Easements <®=>58(3) — Grantee agreeing to “keep” open a way was not required to keep the way unobstructed by gates.</p> <p>Grantee agreeing to “keep open” a way was not required to keep it unobstructed by gates, where for a long period prior to execution of deed gates had been used and the parties made the contract with knowledge of conditions as they existed at the time; the word “keep” meaning in such case “to maintain, to cause to continue without essential change of condition.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Keep.]</p>

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

Action by Hood Hill against W. E. Taylor and another. Judgment for plaintiff against both defendants was affirmed by the Court of Civil Appeals (183 S. W. 830), and the first-named defendant brings error.

Action by Mary E. Roberts against the Wichita Southern life Insurance Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (186 S. W. 411), and plaintiff brings error.

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Suit by the Cleburne Peanut & Products Company against the Missouri, Kansas & Texas Railway Company of Texas. • Judgment for defendant was affirmed by Court of Civil Appeals (184 S. W. 1070), and plaintiff brings error.</p>

Suit by Mrs. Ida W. Harris and others against A. D. Hamilton and others, in which A. D. Hamilton and others were interpleaded by original defendants. From a judgment of the Court of Civil Appeals (185 S. W. 409) affirming an adverse judgment, the plaintiff and interveners bring error.

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>On motion for rehearing.</p>

<p>1. Insurance <©=>150— Rider on compensation insurance policy held not to have modified short rate cancellation clause.</p> <p>A rider appended to a policy of workmen’s compensation insurance issued to an employer held not to have modified the short rate cancellation clause which had been duly approved by the commissioner of banking and insurance, and hence, where the policy was canceled before expiration of the period it had to run, the premium must be computed according to the short-rate cancellation clause.</p> <p>2. Insurance <©=>183 — Premium on workmen’s compensation policy to be computed on basis of remuneration to date of cancellation.</p> <p>Where a workman’s compensation insurance policy issued to a master was canceled in less than the year it had to run, premiums up to the date of cancellation should be computed on the basis of remuneration paid by the master up to time of cancellation, and cannot be diminished on theory that the pay roll computed on basis of an entire year would be less than the amounts paid up to the time of cancellation. ■</p>

<p>Carriers &wkey;>l69, 177(3) — Carrier receiving car from switching company and issuing through bill of lading held “initial carrier” within Carmack Amendment.</p> <p>Where shipper loaded one of its refrigerator cars on tracks of “I.” Railway Company, which switched the car to “H.” Railway Company, the latter paying “I.” company for such switching services, and issuing a through bill of lading to the shipper, “H.” company was the initial carrier, within the Carmack Amendment to the Interstate Commerce Act (U. S. Comp. St. §§ 8604a, 8604aa), and was liable for damages to the shipment in transit.</p> <p>[Ed. Note. — For other definitions, see Woyds and Phrases, Initial Carrier.]</p>

<p>1. Vendor and purchaser @=>278 — Lien and debt barred, where extension signed and acknowledged but not recorded or suit instituted.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5694, 5695, if extension of debt and vendor’s lien, signed and acknowledged, was not obtained and recorded, or suit instituted, within four years from time statute took effect, lien and debt were forever barred.</p> <p>2. Limitation of actions <35=148(4) — Vendor and purchaser <©=>278 — Extension of lien note, not recorded, does not authorize foreclosure.</p> <p>Extension of vendor’s lien note, not recorded as required by statute, would vitalize the debt for four years beyond the four limited by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5694, 5695, but would not authorize foreclosure of lien, which had ceased to exist.</p> <p>3. Limitation of actions <@= 182(2)— Statutes must be pleaded, to obtain relief.</p> <p>Statutes of limitation must be pleaded, in order to obtain any relief under them.</p> <p>4. Acknowledgment <©=>47 — Curative act held without application to unacknowledged extension of vendor’s lien.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6S53, to perfect titles imperfect by failure or refusal to acknowledge instruments, so that they can be recorded, is without application to the case of a buyer of land who refuses to acknowledge contract of extension of vendor’s lien; four years limited by articles 5694, 5695, for continuance of the lien, having elapsed, so that judgment under article 6853 would be a nullity.</p> <p>5. Acknowledgment <3=4 — Deeds <®=>82 — Acknowledgment or record not necessary to make obligation binding.</p> <p>In case of a deed by a party competent to execute it, neither the acknowledgment nor record is necessary to make' it a valid and binding obligation.</p> <p>6. Acknowledgment <3=6(3), 25 — Deed of a married woman, without statutory acknowledgment, void.</p> <p>A deed by a married woman must be acknowledged in a prescribed manner, and without such acknowledgment is absolutely void, and no court can give validity to it by judgment proving it.</p> <p>7. Acknowledgment <35=43 — Certificate of acknowledgment or record not nceessary to make be corrected.</p> <p>If acknowledgment of a married woman’s deed was actually made as required by statute, certificate can be corrected to conform to facts.</p>

<p>1. Limitation of actions <&wkey; 195 (3)— Burden to show cause of action barred on defendant.</p> <p>The burden to show that plaintiff eon-' signee’s cause of action for destruction ofi part of the shipment was barred by limitations was on defendant carrier.</p> <p>2. Limitation of actions <&wkey;46(ll) — Statute did not run on consignee’s cause of action until reasonable period after time for delivery.</p> <p>In absence of actual knowledge that carrier of shipment of cotton would not or could not deliver part of, shipment, or of facts and circumstances which would charge consignee with notice, statute of limitations would not begin to run against consignee’s cause of action until reasonable time had elapsed within which cotton should have been delivered.</p> <p>3. Limitation of actions &wkey;>46(ll) — Notice of carrier’s breach not imputed to consignee to institute running of limitations.</p> <p>Bare fact of knowledge by consignee of cotton, on November 16th, that only 74 bales of consignment of 104 had been delivered by car--rier to Atlantic steamship line, and that latter, on December 7th, delivered to consignee at Liverpool, England, only what it had received from carrier at New Orleans, was insufficient to impute notice to consignee that carrier could not or would not comply with contract, to institute running of statute • of limitations against consignee’s cause of action.</p>

<p>1. Executors and administrators <&wkey;423 — Pending administration, property cannot be recovered unless there are no debts.</p> <p>While it is the general rule that no person interested in an estate can sue to recover property while administration is still pending, there' are exceptions to the rule, one of which is that such suit may be brought where no debts exist.</p> <p>2. Homestead <&wkey;86 — Not liable for debts, and widow is entitled to possession on husband’s death. t</p> <p>Where land which was part of the community estate of a husband and wife was also the homestead, it is not liable for debts, and hence the widow may sue for possession after the death of the husband, although there is an administrator; the widow having title in fee to one half and a possessory right in the other half thereof, so that damages recovered were her property.</p> <p>3. Judgment <&wkey;725(4) — Conclusive as to matters expressly decided, or which by necessary implication must have been decided.</p> <p>Where the court had jurisdiction of a suit by a widow to recover lands which belonged to the community estate of herself and her deceased husband, and also were part of the homestead, the judgment in the widow’s favor is conclusive, not only as to matters decided, but as to all matters which by necessary implication must have been decided to support the judgment.</p> <p>4. Pleading &wkey;l06(I) — Objection that widow, instead of administrator, was suing for community lands should be raised by ptea in abatement.</p> <p>Objection that the widow, instead of the administrator of the deceased husband, was suing to recover lands which belonged to the community, and also constituted the homestead, should be raised by plea in abatement.</p> <p>5. Appeal and error &wkey;G24l — Objection that action should have been brought by administrator instead of widow not available in action on appeal bond.</p> <p>Where the widow sued for community property notwithstanding pendency of administration, and defendant made no objection at trial or on appeal, the supersedeas bond being made payable to the widow, defendant cannot thereafter, in an action on the bond, itself urge that the widow was without capacity to sue, particularly as the land, being part of the homestead, was not subject to debts, and, in view of her title to one-half and right to possession of the other, damages for withholding belonged to her.</p> <p>6. Appeal and error <&wkey;l247 — Reversal of judgment for widow will not be ordered because suit should have been brought by administrator.</p> <p>Where defendant made no objection that an action to recover community property, which was also the homestead, should have been by the administrator of the deceased husband instead of the widow, and damages for withholding, duly assessed by a jury, appeared to be less than might well have been assessed a judgment in action on supersedeas bond brought by the widow will not, in view of her rights, be reversed and the cause remanded, the only effect of which would be to prolong the litigation and increase the costs.</p>

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Action by W. M. Porter against B. H. Mc-Kinnon, Sr. A judgment for plaintiff was reversed by the Court of Civil Appeals (192 S. W. 1112), and plaintiff brings error.</p>

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Action by Carrie B. Shook against the Northwestern Mutual Life Insurance Company. From a judgment of the Court off Civil Appeals (188 S. W. 22) reversing and rendering a judgment in favor of J. E. Whiteselle, executor of the estate oí plaintiff, the latter having died after the suit was brought, the executor brings error.</p>

<p>1. Sales <&wkey;l68!/2(5) — Where test extended without designating time, buyer has reasonable time for test.</p> <p>Where a contract of sale of a plow gave the buyer three days to test the plow, but at the expiration of that time the test was extended with no time designated in which it should terminate, the buyer had a reasonable time thereafter in which to determine'whether the plow would work satisfactorily. 1</p> <p>2. Sales <&wkey;l82(4) — Buyer did not accept plow as matter of law, where jury found time consumed in test was reasonable.</p> <p>Where the time given by a contract of sale for testing a plow was extended without designating any time when the test should terminate, and the jury found that the time consumed in testing it was under the circumstances reasonable and that the buyer did not keep, use, or treat the property as his own after testing it, and there was evidence to support such finding, it could not be said as a matter of law that he accepted the plow.</p> <p>3. Bills and notes <&wkey;438 — Cancellation for fraud practiced on principal releases comakers or sureties.</p> <p>The cancellation of notes, given for the price of a plow, for fraud practiced on the buyer, released comakers of the notes, whether they were joint or joint and several obligors or sureties.</p> <p>4. Principal and agent <&wkey;8l(l) — Innocent agent not required to refund commission when sale rescinded for principal’s misrepresentations.</p> <p>An agent, paid a commission on the sale of a plow which failed to do the work represented by the principal, and for that reason had to be taken back, earned the commissions when the plow was sold and .delivered and was not required to refund them.</p> <p>5. Fraud <&wkey;60 — On rescission for fraud, buyer entitled to recover expenses in testing plow.</p> <p>On rescission of a contract for the purchase of a plow for false representations as to what it would do, expenses incurred by the buyer for labor, gasoline, and oil in testing the plow were recoverable.</p>

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Certiorari by Charles R. Goodman and others against William E. Schwind and others to review orders of probate court. From a judgment of the'Court of Civil Appeals (186 S. W. 282) reversing judgment of district court defendants bring error.</p>

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Action by Frank Marcofick against the St. Louis, Brownsville & Mexico Bailway Company, the International & Great Northern Bailway Company, and another. A judgment for plaintiff against 'the defendants named was affirmed by the Court of.Civil Appeals (185 S. W. 51), and such defendants bring error.</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>Action by Winfred Vardeman against the First State Bank & Trust Company of Hereford. Judgment for plaintiff was affirmed by the Court of Civil Appeals (188 S. W. 695), and defendant brings error.</p>

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Action by Mrs. Alice Halbrook, for herself and as next friend of her minor children, against the Orange Ice, Light & Water Co. The Court of Civil Appeals affirmed a judgment entered on a directed verdict for defendant (181 S. W. 751), and plaintiffs bring error.</p>

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Action by the Empire Express Company against the Missouri. Kansas & Texas Railway Company of Texas and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals (173 S. W. 222), and defendants bring error.</p>

<p>1. Insurance <S=>335(I) — Provisions as to inventories and books are promissory warranties, and must be substantially complied with.</p> <p>Provisions of an insurance policy on a stock of goods requiring insured to take, preserve, and produce inventories and to keep hooks are promissory warranties, and, unless the law has been changed by statute, a failure to comply with either will render the policy void, but a substantial compliance is sufficient.</p> <p>2. insurance <§^>335(2) — Failure to produce inventory misplaced by bank with which it was left not a breach of warranty.</p> <p>Under a provision of an insurance policy requiring insured to take inventories and preserve and produce them after a fire, the failure to produce an inventory which was left at the bank with which insured did business, and was misplaced by it, and could not be found, did not avoid the policy, where a later inventory was. produced, and invoices and account sales showing purchases and sales before and after such inventories to the time of the fire were produced.</p> <p>3. Insurance <®=>335(3) — Slips on which accounts were kept, held to satisfy warranty as to keeping books; “book of account.”</p> <p>Where 'insured kept accounts of certain sales on pad slips placed on a spindle and recorded each sale on the cash register, and each day compared the slips with the sales as indicated by the cash register, and added the items on an adding machine, the pad slips, cash register items, and adding machine slips, when pinned -together and preserved, satisfied a provision of an insurance policy requiring the keeping of books, though they were not technically “books of account.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Book of Account.]</p> <p>4. Insurance <@=»335(3) — Warranty as to books of account satisfied by bound invoice book and. check book stubs.</p> <p>Where insured kept invoices in a bound invoice book and a record of certain purchases on the stubs of his bound check book, the invoice book and check book constituted a substantial compliance with the provision of the policy requiring the keeping of books of account.</p>

<p>1. Trial <©=>143 — No peremptory instruction where there are controverted issues of fact.</p> <p>Where controverted issues of fact are made by the evidence, the court cannot give a peremptory instruction.</p> <p>2. Fraud <©=3 — “Actionable fraud” defined.</p> <p>“Actionable fraud” exists where one makes a false representation of a material fact knowing it to be false, or of his own knowledge when he does not know whether it is true or false, with intention to induce the person to whom it is made, in reliance upon it, to do or to refrain from doing something to his pecuniary hurt, when such person, acting with reasonable prudence, is thereby deceived and induced to so do or refrain to his damage.</p> <p>[Ed. Note. — Eoiv other definitions, see Words and Phrases, First and Second Series, Actionable Fraud.]</p> <p>3. Fraud <®=ll(l) — Expression of.opinion not actionable.</p> <p>A statement, which by reason of its form or subject-matter amounts merely to an ex^ pression of an opinion, is not actionable.</p> <p>4. Fraud <@=(3(2) — No distinction between misrepresentations made knowingly and by mistake.</p> <p>There is no distinction in actions for deceit between misrepresentations made knowingly and by mistake.</p> <p>5. Fraud <§=>64(I) — Questions for court and jury defined.</p> <p>The sufficiency of circumstantial evidence to establish fraud is for the jury under proper instruction; but, as a rule, if upon the uncon-tradicted evidence reasonable men can reach but one conclusion, the court may direct a verdict, and may also direct a verdict where there is no evidence to prove one or more of the essential elements.</p> <p>6. Fraud <S=I I (I)' — Representations as to sufficiency and capacity of irrigation works actionable.</p> <p>Statements of a seller of land as to the capacity and sufficiency of irrigation machinery and ditches, based on an opinion of an engineer, held not to be a mere matter of opinion, when made by seller as of his own knowledge.</p> <p>7. Fraud <@=22(1J — Party bound by what proper investigation would disclose.</p> <p>When a party undertakes to discover the truth of a statement for himself to rely upon, he is bound by everything which a proper investigation would disclose, and would not be justified in relying on the fraud of the other party.</p> <p>8. Evidence <©=501 (6) — Opinion properly given as' to condition of irrigating machinery and canal.</p> <p>A witness may give his opinion of any obvious fact of which he has knowledge from personal observation, and a person, not an engineer, could state that in his opinion irrigation machinery and a canal would not furnish water, where he stated the facts as he saw them, and knew that the canal and the plant did not furnish water.</p> <p>9. Payment <®=>63(l) — Manner -of payment may be shown under allegation of payment.</p> <p>When pleadings allege payment, it is permissible for a witness to show how payment was made.</p> <p>10. Appeal and error <©=>1053(5) — Admission of evidence harmless where no issue to which ■it related was submitted.</p> <p>In an action to foreclose vendor’s lien notes, where defendant set up damages for fraud of plaintiff concerning irrigability of land, proof by defendant that land which he applied in part payment on a valuation of $100 per acre sold thereafter for $250 per acre was harmless, if error, where no issue concerning it was submitted to the jury; testimony having been offered on the question of damages to show that the land exchanged was not under value, etc.</p> <p>11. Fraud <©=54 — Similar fraudulent representations to third persons admissible.</p> <p>In an action wherein damages were sought for fraud, in that a seller of land represented that an irrigation plant would supply sufficient water, testimony as to a statement to such effect, made to third persons, was admissible, being a representation involving the same character of fraud as that alleged in the action.</p> <p>12. Appeal and error <©=1050(2)— Admission of opinion evidence harmless..</p> <p>In an action wherein damages were sought for fraudulent representations as to the capacity and sufficiency of irrigation machinery and canals, it was harmless, if error, to permit one not qualified as an expert to give his opinion as to the capacity of the machinery and canal, where it was not contended that the machinery and canal performed the required services.</p> <p>13. Appeal and error <@=(053(5)— Admission of evidence not bearing on an issue submitted harmless.</p> <p>Admission of evidence which did not bear upon any issue submitted to the jury was harmless.</p>

P. Wheat, Judge. Suit by E. E. Eastham against the Turn-bow Lumber Company and another. Judgment in favor of the defendant J. S. Meri-wether and for plaintiff against the defendant Turnbow Lumber Company, and the latter appeals.

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Action by the Clement Grain Company against James A. Baker, receiver, and another. From judgment against the named defendant, he appeals.</p>

<p>1. Insurance @=3388(4) — Waiver of forfeiture presumed from slight circumstances.</p> <p>As the law abhors forfeiture, it will seize on slight circumstances to show that an insurance company has waived compliance with the provisions requiring prompt payment of premiums, and in such case conduct with respect to other premiums than those the failure to pay which is relied on as constituting a forfeiture may be considered.</p> <p>2. Insurance @=>371 — No act by party asserting waiver is necessary.</p> <p>Where it is claimed that an insurer waived a forfeiture, no act by the insured is neces-, sary; the waiver being essentially unilateral in character, and depending only on the acts and conduct of the insurer.</p> <p>3. Insurance @=>371 — Waiver of forfeiture need not be supported by consideration.</p> <p>Waiver of forfeiture of provisions in a life policy need not be supported by consideration or based on estoppel.</p> <p>4. Insurance @=>668(15) — Waiver of forfeiture for nonpayment of premium held for jury.</p> <p>In an action on a life policy, evidence held sufficient to go to the jury on the question of waiver of forfeiture for nonpayment of premiums.</p> <p>5. Insurance @=>141 (3) — Acknowledgment of receipt of premium conclusive.</p> <p>An acknowledgment of receipt of the first premium contained in a life policy is conclusive, and will prevent the insurer from asserting invalidity of the policy delivered on ground of nonpayment, although the rule does not go so far as to prevent the insurer from recovering the amount actually due for premiums.</p> <p>6. Insurance @=>668(3) — Whether policy acknowledging payment of premium was delivered held for jury.</p> <p>Whether a life policy acknowledging payment of premium was delivered, so as to es-top the insurer from asserting invalidity of the policy because of nonpayment of the first premium, held, under the evidence, for the jury.</p> <p>On Motion for Rehearing.</p> <p>7. Insurance <@=>372 — Life company may waive provision that soliciting agent shall have no power to change terms of policy.</p> <p>Notwithstanding Rev. St. 1911, art. 4968, a life company may waive provision that a soliciting agent shall have no power or authority to waive or change the terms of a policy, and waiver may result by acts of such agents authorized or acquiesced in by the officers.</p> <p>8. Insurance <@=>664 — Evidence of transactions as to other policy admissible on waiver.</p> <p>Where two original policies were applied for and issued at the same time, the two policies cannot be deemed so unrelated that past dealings with regard to waiver or forfeiture for nonpayment of premiums when due would be inadmissible, upon the question of intent to later waive the forfeiture of either policy, and of another policy to which one of them was intended to be converted.</p>

<p>Certified Question from Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Suit by G. W. Lovell against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff was reversed by the Court of Civil Appeals, and a question was certified to the Supreme Court. 179 S. W. 1111.</p>

<p>1. Partnership <§=o!74 — Partners individually responsible for torts by firm.</p> <p>Partners are individually responsible for torts by a firm when acting within .the general scope of its business, whether they personally participate therein or not.</p> <p>2. Bankruptcy <S=»424 — Bankrupt not released from liability for conversion of proceeds of note held as collateral by another; “willful and malicious injury to property.”</p> <p>Unauthorized sale of mortgaged chattels by mortgagee and payee of notes secured thereby, held by another as collateral, and the appropriation of the avails without the knowledge of the holder of the note, is a “willful and malicious injury to property” within the meaning of Bankruptcy Act, § 17, as amended by Act Feb. 5, 1903 (Comp. St. § 9601), providing that a discharge in bankruptcy shall not release the bankrupt from liability for willful and malicious injuries to the person-or property of another.</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Willful and Malicious Injury.]</p>

<p>Error to Court of Civil Appeals of Fourth Supreme Judicial District.</p> <p>Suit by Hermine Knodel and others against the Equitable Life Insurance Company and others. From judgment for defendants, plaintiffs appealed to the Court of Civil Appeals, which affirmed (193 S. W. 1138), and plaintiffs bring error.</p>

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Action by N. M. Alexander and others against I. Heidenheimer, Jr., and others. A judgment for plaintiffs was reversed by the Court of Civil Appeals (205 S. W. 458), and plaintiff's bring error.</p>

Suit by S. J. Nussbaum and another against Joe Blumenthal and others. Judgment was rendered for plaintiffs, was reversed, and cause remanded by the Court of Civil Appeals (195 S. W. 275), and plaintiffs bring error.

Action by W. G. McCarty against B. E. Whitaker, in which Jennie McCarty, widow, was substituted as plaintiff. A judgment for plaintiff was affirmed by the Court of Civil Appeals (188 S. W. 502), and defendant brings error.

<p>I. Bankruptcy <©=>149 — Assets of partnership not drawn into bankruptcy proceedings unless a party.</p> <p>Where neither a partner nor the partnership were parties to a bankruptcy proceeding in which another partner was adjudicated a bankrupt, the adjudication in bankruptcy did not draw into the proceedings the assets of the partnership, in view of Bankr. Act, § 5g (U. S. Comp. St. § 9589).</p> <p>2. Bankruptcy <§=149 — Partner of bankrupt may convey firm real estate.</p> <p>Under Bankr. Act, § 5g (U. S. Comp. St.</p> <p>§ 9589), a partner had the implied power to convey the real estate of the firm in settlement of the firm’s business and to dispose of his own interest, where neither he nor the firm were parties to a proceeding in which another partner was adjudicated a bankrupt.</p> <p>3. Estoppel <®=92(3) — Agreement of third person to release maker binding on third person’s subsequently acquiring note.</p> <p>Where defendant bought interest in business, giving note therefor, and a partnership was formed and the two partners executed notes to a third person, the note given for the interest in the business being placed as collateral, and the seller of the partnership interest was adjudicated a bankrupt, and the defendant sold the real estate of the firm to the third person in consideration of a discharge of the note against the partnership and a release of defendant from liability on his note to the bankrupt, the agreement of the third person to release defendant from liability on his note was a binding obligation upon the third person, and it could not recover thereon where the note subsequently came into his hands.</p>

<p>1. Appeal and error <@=3 1099 (6) — Sufficiency of petition held settled by former appeal.</p> <p>The sufficiency of the petition as against a general demurrer was settled by a former appeal, in which a judgment sustaining a general demurrer was reversed and writ of error denied.</p> <p>2. Counties <@=3140 — Collection of delinquent taxes not condition of liability for publishing delinquent list.</p> <p>Under the law it is the duty of the commis-. sioners’ court of the county to have the delinquent tax list published and to pay for such publication, and such obligation to make payment is not dependent on collection of the taxes.</p> <p>3. Newspapers <@=>2 — Liability for publication . of delinquent tax list .not made contingent by</p> <p>contract.</p> <p>A contract for the publication of the delinquent tax list, providing for payment “as delinquent taxes are paid into the hands of the tax collector,” did not make compensation for publishing the list dependent on’ the collection of the tax, but merely fixed the time for payment.</p> <p>4. Newspapers <©=32— Liability payable as taxes were collected matured after a reasonable time.</p> <p>Under a contract for publication of the delinquent tax list providing for payment, as the taxes were paid the debt matured when the county had been given a reasonable time in which to exhaust the remedies provided for the collection of the tax.</p> <p>5. Newspapers <@=>2 — Petition sufficient as to failure of county to collect delinquent taxes from which payment was to be made.</p> <p>In a suit for compensation for publishing the delinquent tax ^ist under a contract providing for payment as the taxes were paid, a petition, alleging that a reasonable time for payment of the debt had expired, sufficiently alleged, as against general demurrer, the failure of the county to perform its duty to proceed expeditiously to the enforcement of the obligation of the taxpayers.</p> <p>6. Newspapers <§=>2— Reasonable time for collection of delinquent taxes held to have expired.</p> <p>Where a contract made in 1907 for publication of the delinquent tax list provided for payment as the taxes were paid, a reasonable time in which to have disposed of the tax litigation had expired when the claim for compensation was presented and rejected in 1913.</p> <p>7. Appeal and error <©=> 173((0) — That action was premature not ground for reversal, where question of abatement was not presented.</p> <p>* In a suit for publishing the delinquent tax list under a contract providing for payment as the taxes were paid, where the action was brought prior to the expiration of a reasonable time for collection of the taxes as found by the jury, but an amended petition was filed after the date so found, and no question of abatement was presented, the judgment could not be disturbed because the suit was prematurely brought.</p>

Suit by V. K. Wedgeworth and wife against J. B. Pope and others. Judgment was rendered for defendants, and was reversed, and the cause was remanded by Court of Civil Appeals (196 S. W. 621), and named defendant brings error. Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by J. E. Mitchell and another against J. F. Zurn and others. From judgment for plaintiffs, defendants appealed to the Court of Civil Appeals, which reversed and rendered (196 S. W. 544), and plaintiff Mitchell brings error.

Suit by J. H. Slaton and another against the Citizens’ National Bank of Plainview and another. Judgment was rendered for plaintiffs, was reversed, and the cause was remanded by the Court of Civil Appeals (189 S. W. 742), and plaintiffs bring error.

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Action by J. M. Lafevers against P. G. Taylor and another. A judgment for plaintiff was affirmed by the Court of Civil Appeals (19S S. W. 651), and defendants bring error.</p>

<p>Good will &wkey;>6(4)— Agreement not to engage in business abrogated by subsequent partnership.</p> <p>Where plaintiff, who was a partner with defendant in a hail insurance business, bought defendant’s interest, and defendant agreed not to write hail insurance in the county so long as plaintiff should continue in such business, defendant’s agreement not to engage in such business in the county was abrogated and superseded by a subsequent agreement, wherein another partnership was formed between plaintiff and defendant to write hail insurance in such county and other counties, defendant’s duty being to solicit insurance in all the counties, and after the dissolution of the second partnership defendant could enter into a competitive business in the county.</p>

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Action by the Cooper Grocery Company against Frank Neblett and another. Judgment for defendants was affirmed by Court of Civil Appeals (203 S. W. 365), and plaintiff brings error.</p>

<p>1. Trial <&wkey;l40(l) — Credibility of testimony for the jury.</p> <p>It is the province of the jury to determine the credibility of the testimony.</p> <p>2. Evidence <&wkey;590 — Interest of witnesses considered in determining credibility.</p> <p>The jury in determining the credibility of the testimony may consider the interest of the witnesses.</p> <p>3. Evidence <&wkey;589 — Defendant’s denial of recitals of note and deed by purchaser, though otherwise not contradicted, held not conclusive.</p> <p>Purchaser’s uncorroborated testimony that note was not a part of the purchase price and that recitals in note and deed to the contrary were made wrongfully and without her consent by vendor, who was intrusted with the drafting of the deed, though not contradicted except by the recitals themselves, held not conclusive that note was not part of purchase price; the purchaser being an interested witness, and the jury being therefore warranted in rejecting her testimony.</p>

<p>1. Guardian and ward &wkey;>l65 — Part of judgment recovered by minors and paid by guardian to their attorneys without inventory not reviewable under bill of review.</p> <p>Where one-third of judgment recovered in favor of minors which was paid to their guardian and by him paid to their attorneys was never inventoried by the guardian, and no decision was made by the court concerning it, there was nothing relating to such third to review on bill of review, under Rev. St. 1911, §§ 4290-4301, of judgment approving the guardian’s final account.</p> <p>2. Guardian and ward <&wkey;32 — Statutes afford method to secure statement of property received but not inventoried.</p> <p>The guardianship statutes afford a method to secure statement by guardian of property received, not shown in his original inventory, and erroneous or incomplete inventories filed by the guardian may be corrected and new ap-praisements ordered under Rev. St. 1911, arts. 4117-4120, as provided in the case of estates of decedents, governed by articles 3341-3345.</p> <p>3. Guardian and ward <&wkey;32 — Direct suit against guardian proper procedure for refusal to file additional inventory, or when new inventory not sought.</p> <p>If a guardian refuses to comply with an order to file an additional inventory secured in the manner provided by Rev. St. 1911, arts. 4117-4120, or in the absence of a new or corrected inventory having been sought in such manner, the proper procedure by the ward is by direct suit against the guardian and his sureties for the amount received and not accounted for.</p> <p>4. Guardian and ward &wkey;>30(I) — Person who supplies necessaries to minor must present claim to probate court for allowance and* approval.</p> <p>Under Rev. St. 1911, arts. 4131, 4207, 4217, 4224, 4233, though one supplying necessaries, as maintenance and education, for a minor, is entitled to compensation out of his estate, he must present his claim for amount so expended to probate court, and have it allowed and approved; and if he fails he is not entitled on final accounting as guardian to credits for such expenditures then first claimed.</p> <p>5. Guardian and ward <&wkey;58 — Guardian not entitled to credits first claimed on final accounting.</p> <p>Under Rev. St. 1911, arts. 4131, 4207, 4217, 4224, 4233, a guardian of minors who did not have established his claims for burial expenses of their father and for his personal expenses incurred in prosecuting suit against a railroad for the father’s death is not entitled to allowance of such credits on final accounting, when the claims are presented for the first time.</p> <p>6. Guardian and ward &wkey;>54 — Guardian who fails to invest liab'le'for 10 per cent, interest.</p> <p>Under Rev. St. 1911, art. 4150, a guardian who neglected to invest or loan surplus moneys in his hands belonging to his wards held liable for the principal and 10 per cent, interest as the highest legal rate thereon, defined by article 4977, not 4974, for the time he neglected to invest.</p>

Graves, Judge. Suit by Mrs. Rebecca M. Manning against Mrs. Emma Johnson and others, in which the defendant named filed a cross-action against W. J. Daugherty and others. From a judgment against him, Daugherty appeals.

<p>Execution (&wkey;320&emdash;Sheriff’s deed without evidence of judgment and execution is insufficient to show title.</p> <p>A sheriff’s deed reciting that it was made by virtue of an execution issued on a judgment is insufficient to support title without evidence of the judgment or execution.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Mrs. N. C. Brooks against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>• Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Richard T. Brooks against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and error <&wkey;9l7(2) — Record being silent as to presentation, demurrer deemed waived.</p> <p>Where the record on appeal is silent as to whether a demurrer was presented or acted upon, it will be deemed to have been waived.</p> <p>2. Damages &wkey;M7l —Evidence as to plaintiff’s financial standing held not prejudicial to defendant.</p> <p>In an action for personal injuries sustained by plaintiff by being struck by defendant’s railroad train at a crossing, admission of evidence as to property owned by plaintiff, consisting of land and live stock, held not erroneous as calculated to prejudice the jury against defendant, and as showing that plaintiff was a man of wealth, and that it would require a large sum to compensate him.</p> <p>3. Damages &wkey;>173(2) — Plaintiff’s financial condition held admissible to show damages.</p> <p>In an action for personal injuries sustained by plaintiff, struck by defendant’s railroad train at a railroad crossing, evidence as to property owned by plaintiff, consisting of live stock and land, was admissible to show the extent and character of plaintiff’s business and the pecuniary loss resulting from the injuries which prevented his looking after and attending to his property and affairs.</p> <p>4. Railroads <&wkey;350(5) — Negligence in failing to station flagman at crossing where view obstructed by freight train held for jury.</p> <p>In an action for personal injuries sustained by plaintiff through being struck by defendant’s railroad train at a crossing in a town, if appearing that a freight train on a side track had been cut at the crossing, and that the view of the approaching passenger train was thereby obscured, evidence held, insufficient to warrant submission to the jury of the issue as to whether defendant should have stationed a flagman at the crossing.</p> <p>5. Appeal and error <&wkey;4062(f) — Error in submitting railroad’s failure to station flagman held harmless, where judgment supported on another grourid.</p> <p>In action for personal injuries sustained by plaintiff struck by defendant’s passenger train while crossing the track in an automobile driven by another, error, if any, in submitting defendant’s failure to station flagman at the crossing held, harmless, where the judgment for plaintiff could be referred tb another ground of negligence, consisting of defendant’s violation of the speed ordinances.</p> <p>6. Trial &wkey;>194(17) — Instruction as to contrib- ■ utory negligence imputable to plaintiff held on weight of evidence.</p> <p>In an action for injuries sustained by plaintiff, struck by defendant’s railroad train at a crossing while riding in an automobile driven by another, an instruction that the failure of another passenger in the automobile to observe the approaching train was contributory negligence imputable to plaintiff held properly refused as being on the weight of the evidence.</p> <p>7. Trial &wkey;>252(9) — Instruction as to duty of plaintiff’s copassenger to stop car held properly refused.</p> <p>In an action for injuries sustained by plaintiff, struck by defendant’s railroad train at a crossing while riding in an automobile driven by another, an instruction that the failure of another passenger in the automobile to observe the approaching train was contributory negligence imputable to plaintiff held, properly refused, as being erroneous in placing upon such other passenger the duty of stopping the car, when it was not shown that he had any control thereof.</p> <p>8. Trial <&wkey;>252(9) — Instruction as to contributory negligence of plaintiff’s copassenger held properly refused, where joint enterprise not ' shown.</p> <p>In an action for personal injuries sustained by plaintiff struck by defendant’s railroad train at a crossing while riding in an automobile driven by another, an instruction that the failure of another passenger in the automobile to observe the approaching train was contributory negligence imputable to plaintiff held, properly refused as not based upon evidence sufficient to raise the issue of joint enterprise.</p> <p>9. Railroads <&wkey;327(l I)— Speed statute held not to apply to passenger having no control over driver of motor vehicle.</p> <p>Vernon’s Ann. Pen. Code Supp. 1918, art. 820Z, relating to the speed of motor vehicles when crossing railroad tracks, does not apply to one merely riding in an automobile as a guest or companion,' but having no control over the driver, and it would apply to such a one only when the driver’s negligence should be imputable to Mm.</p> <p>10. Appeal and error <&wkey;l068(5) — Refusal of instruction as to violation of speed ordinance by plaintiff held not erroneous, in view of findings.</p> <p>' In an action for personal injuries sustained by plaintiff, struck by defendant’s railroad train at a crossing while riding in an automobile driven by another, where there were special findings that plaintiff exercised ordinary care for his own safety, and was not engaged in a joint enterprise with the driver, refusal to submit the question of whether the automobile was slowed down to a speed not greater than six miles an hour within 30 feet of the crossing, a^ required by Vernon’s Ann. Pen. Code Supp. 1918, art. 820Í, held not reversible error; the findings of the jury being conclusive.</p> <p>11. Damages i&wkey;>!32(2) — $8,000 held not excessive for broken leg, where injury migh't be permanent.</p> <p>$8,000 held not excessive where plaintiff, 34 years old, struck by defendant’s railroad train, sustained a fracture of the leg and suffered considerable pain, his earning capacity was decreased to ' the extent of over $5,000, and the injury might be permanent.</p>

Error from District Court, Harris County; J. D. Harvey, Judge. Suit by W. E. Monteith, trustee, against J. B. Cochran and others. Held: however, that plaintiff in error was not entitled- to have said in-debteclness of said company to him set off against the claim of defendant in error for the balance of said subscription, and rendered judgment against plaintiff in error in defendant in error’s favor for same, to wit, $3,240.95, but without prejudice to the right of…

Suit by Mrs. Emma Williams against the Houston Transfer & Carriage Company and others. Fr-om a judgment of the Court of Civil Appeals (201 S. W. 712), affirming a judgment in favor of plaintiff, defendants bring error.

<p>Appeal from El Paso County Court; E. B. McClintock, Judge.</p> <p>Jesus Regalado Guillen was convicted of receiving stolen property, and he appeals.</p>

<p>1. Fraud &wkey;>59(I) — Measure of damages value of goods obtained.</p> <p>In an action against one obtaining goods by false pretenses, by fraudulent statements as to his financial status, measure of damages is ordinarily the value of the goods obtained, with 6 per cent, interest.</p> <p>2. Bankruptcy <&wkey;363, 423 (I) — Waiver of tort on filing claim in bankruptcy no bar to action for deceit after discharge.</p> <p>Discharge, by buyer’s bankruptcy, of his contract indebtedness for goods whose sale was procured by Ms fraud, does not discharge his liability for the deceit, and, although the seller could waive the tort and file a claim in bankruptcy based on the contract, yet he could also bring a subsequent action in deceit.</p> <p>3. Pleading <&wkey;162— Office of supplemental petition.</p> <p>' The office of a supplemental petition is not to set up a cause of action, but simply to reply to the pleadings of the adversary.</p> <p>4. Judgment &wkey;>250 — No recovery for tort under prayer for recovery on contract.</p> <p>A suit on contract will not authorize a recovery for a tort, and a judgment for a tort will be set aside where the pleadings only seek recovery on a contract.</p> <p>5. Bankruptcy <&wkey;423(l) — Only fraud in fact exempt from discharge.</p> <p>The fraud referred to in Bankruptcy Act, § 17, as amended by Acts Eeb. 5, 1903, § 5, and March 2, 1917 (U. S. Comp. St. § 9601), releasing a bankrupt from all his -provable debts except liabilities for obtaining property by false pretenses or false representations, means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality.</p>

<p>1. Assault and battery <@=>42 — Whether attacks by two defendants constituted a joint attack held not a jury question.</p> <p>In a damage suit for assault and battery, where the attacks by the two defendants occurred at the same place, about the same time, as ■a part of one general assault, court’s treatment of the attacks as one or a joint attack, in submitting question of whether both were principals, field proper as against contention that question of whether they constituted two separate and distinct attacks should have been submitted to jury.</p> <p>2. Assault and battery ¡@=335 — Evidence held to show defendants went to place of difficulty knowing of likelihood of trouble.</p> <p>In a damage suit for assault and battery, defended upon ground of self-defense, evidence held to support finding that defendants went to place of difficulty knowing that there was a likelihood of having a difficulty.</p> <p>3. Appeal and error <®=> 1001 (1) — Jury finding supported by evidence conclusive.</p> <p>Findings of jury, when supported by evidence, are binding upon Court of Civil Appeals.</p> <p>4. Assault and batte'ry <@=>24 (3) — Evidence of plaintiff’s reputation as a man likely to carry out threats held inadmissible in view of pleading.</p> <p>In a damage suit for assault and battery, defended on ground of self-defense, where only actual damages were asked for, and where there was no pleading that plaintiff was a bad and dangerous man, who would be likely to carry out threats, exclusion of evidence that plaintiff was a dangerous man, likely to carry out any threat, field proper, though there was evidence of threats having been made.</p> <p>5. Assault and battery <@=>34 — That assaulted person was dangerous and had made threats may mitigate punitory damages.</p> <p>That man assaulted was a dangerous man, who had made previous threats, and who had reputation of carrying out threats, may be used in a proper case in mitigation of punitory damages, but not as justifying an unlawful assault.</p> <p>6. Assault and battery <@=>24(3) — When evidence of character of assaulted person is admissible.</p> <p>Threats made and communicated are admissible under self-defense plea; but, before admitting evidence of the general character of the assaulted party as a justification, there must be a proper pleading putting it in issue, and evidence to support it, it being the general rule that matters- in justification cannot be pleaded under the general issue.</p> <p>7.Assault and battery <@=>40 — $3,750 verdict for assault and battery held not excessive.</p> <p>In action for assault and battery committed by two defendants with shovels, injuring plaintiff in the head and ribs, $3,750 verdict field not so large as to manifest passion or prejudice on the part of the jury.</p>

<p>1. Railroads <®=»275(2) — Shipper’s employe held entitled to protection.</p> <p>Railroad’s duty toward shipper’s employé who, while assisting in loading and unloading of shipper’s freight at depot, was required to help in moving flat car which the railroad had failed to properly place, was that of exercising ordinary care, since such employé was rightfully upon premises, and was not a volunteer, trespasser, or mere licensee.</p> <p>2. Railroads <®=o282(9) — Negligence as to shipper’s employé held for jury.</p> <p>In an action for death of shipper’s em-ployé helping to place a flat car for loading, whether railroad was negligent in having shunted a string of cars on the track without warning held a question for jury under evidence showing that railroad should have known that shipper’s employés reasonably might be in a dangerous position in placing the flat car.</p> <p>3. Trial <^>350 (6) — Refusal to submit eviden-tiary issue as to negligence held not error.</p> <p>In action against railroad for death of shipper’s employé crushed between cars while assisting in the loading of freight, refusal to submit issue of whether railroad in shoving cars upon track without warning knew that deceased employé was on the track held not error, since such issue was evidentiary and a negative answer would not necessarily have relieved railroad of liability.</p> <p>4. Appeal and error <@=5 1062 (2) — Refusal to submit evidentiary issues not reversible error.</p> <p>It is not reversible error to refuse the submission of evidentiary issues.</p> <p>5. Railroads <§=5282(4) — Custom^ held admissible to charge railroad employés with notice that shipper’s employé might be on track.</p> <p>In an action for the death of a shipper’s employé assisting in placing flat car in position for loading, evidence of a custom in railroad yards for shipper to move a car, when but a few feet of being in the proper place, after having been placed by railroad, held admissible on issue of whether railroad employés who moved cars on track, crushing deceased, were charged with notice that shipper’s employés reasonably might be expected to go on track.</p> <p>6. Appeal and error <@=5880(1) — One defendant . cannot <complain of error as to liability of</p> <p>codefendant.</p> <p>In action for death of shipper’s employé against shipper and railroad, railroad could not complain on appeal of any errors ■ relating to liability of shipper; such errors not affecting railroad.</p> <p>7. Railroads <§=5282(9) — Shipper’s employé held not contributorily negligent.</p> <p>Shipper’s employé, crushed between cars while helping to place a flat car in position for loading when railroad employés shoved a string of ears onto same track without warning, held not contributorily negligent as a matter of law.</p> <p>8. Death <®^99(4)— $10,000 verdict to wife and children held not excessive.</p> <p>$10,000 verdict to surviving wife and children for death of 27 year old common laborer, earning $1.50 a day, with expectancy of more than 37 years, held not excessive.</p> <p>9. Master and servant <®=ol0l, 102(8) — Ordinary care required.</p> <p>The master is bound to exercise that degree of care for the protection of his servant which an ordinarily prudent person would exercise under similar circumstances, and whether he has discharged such duty depends upon the facts of the particular case and the dangers to be apprehended or avoided.</p> <p>10. Master and servant <S=>286(I) — Negligence a question of fact.</p> <p>In the absence of a controlling statute or municipal ordinance, the question of master’s negligence is one of fact, and becomes a question of law only when the facts are undisputed and reasonable minds cannot differ as to the conclusion.</p> <p>11. Master and servant <®=»297(2) — Findings held not inconsistent.</p> <p>In an action for the death of a shipper’s employé helping to place a flat car in position for loading, when railroad employés moved a string of cars upon same track without warning, judgment was properly rendered for plaintiff against shipper upon finding that shipper failed to exercise ordinary care to maintain a lookout and warn deceased, notwithstanding other finding that shipper was not negligent in failing to provide safe working place; or in ordering deceased to help place car; such findings not being inconsistent.</p> <p>12. Master and servant <®=»286(28) — Negligence in failing to maintain lookout for cars question for jury.</p> <p>Where a shipper’s employé was injured while assisting in placing a flat car in position for loading, and the shipper maintained no lookout for cars that might be moved upon same track, as that on which he was working, a peremptory instruction in the shipper’s favor on the ground that there was no evidence of negligence on its part was properly refused.</p>

Action by Elza Mentz Allen against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. About 1 o’clock a. m. September 14, 1917, appellant delivered to appellee, then at her home in Houston, a telegram from one New-ell, then at Tampico, Mex., as follows: “Will you accept kindergarten position here hundred twenty-five monthly plus traveling expenses?

<p>1. Railroads (@=3441(1) — Owner of animal killed at place which could not be fenced must prove negligence.</p> <p>In an action against a railroad for killing a mare at a place where the track could not be fenced, burden is on plaintiff to prove negligence of the railroad which was the proximate cause of the killing.</p> <p>2. Railroads ¡@=>425 — Failure to sound warning not cause of killing animal caught in guard.</p> <p>Where plaintiff’s mare was killed by a train while she was caught in cattle guard at a road crossing, the negligent failure of the railroad employés to sound the statutory warnings for the crossing could not be proximate cause of the killing.</p>

Gibbs, Judge. Injunction suit by J. E. Millhollon against the Stanton Independent School District and others. Prom the decree plaintiff appeals, and defendants present a cross-assignment.

<p>1. Appeal and error,<&wkey;93l (3) — Findings presumed in support of judgment where none are filed.</p> <p>Where findings of fact and conclusions of law were not filed by the trial court on trial without a jury, it must be presumed in support of the judgment that the court found every fact fairly deducible from the evidence necessary to its rendition.</p> <p>2. Partnership <&wkey;311 (3) — Court need not audit items in settlement upon which there was no contention.</p> <p>In a suit to set aside a settlement of partnership affairs, court need not audit all the partnership accounts, where there is no issue between the parties except as to certain items.</p> <p>3. Partnership &wkey;>3ll(5) — Fraud vitiates voluntary settlement.</p> <p>Eraud vitiates a voluntary settlement of partnership affairs as it will any other contract.</p> <p>4. Partnership <@=>311(5) — Judgment for plaintiff in suit to set aside settlement for fraud sustained by evidence.</p> <p>In an action to set aside a settlement of partnership affairs on the ground of fraud, evidence held- sufficient to sustain a judgment for plaintiff.</p> <p>5. Partnership <&wkey;3l!(5) — Partner in. final settlement may rely on statements of other partner.</p> <p>Partners occupy a fiduciary relationship to each other and have the right to repose confidence in one another and to rely upon statements made relative to partnership affairs, and are not required to deal with one another at’ arm’s length, even in a settlement of partnership affairs, and it is no answer in a suit to set aside a settlement that plaintiff had means of obtaining knowledge of matters involved.</p> <p>6. Partnership &wkey;>3ll(5) — Whether partner had right to rely on. partner’s representations inducing settlement held for court.</p> <p>In an action by a partner to set aside a settlement of partnership affairs, whether plaintiff had a right to rely on the representations and statements of defendant partner held for the trial court under the evidence.</p> <p>7. New trial &wkey;>108(2) — No abuse of discretion in refusing new trial for newly discovered evidence.</p> <p>In a suit by partner to set aside a settlement of partnership affairs, 7ield, that court did not abuse its discretion in refusing to grant defendant a new trial on the ground of newly discovered evidence concerning items in evidence, where the newly discovered evidence probably would not have changed the result and there was nothing to indicate that the court charged defendant with such items.</p> <p>8. Appeal and error <&wkey;98l — New trial <&wkey;99 —Refusal on ground of newly discovered evidence discretionary.</p> <p>The refusal of new trial on ground of newly discovered evidence is a matter which rests largely in the discretion of trial judge, and his action ordinarily will not be revised by an appellate court.</p>

<p>1. Municipal corporations <&wkey; 367 — Surety which assumed to complete contract with city obligated to use reasonable care to minimize cost. '</p> <p>Where city canceled contract for construction because contractor was financially embarrassed, when contractor’s surety undertook to take over and complete work, it was under duty to use reasonable care and good faith to do so at minimum cost, and to account to contractor for difference between' cost and amount received from city, a duty not escaped by letting the contract to a construction company for an arbitrary sum.</p> <p>2. Appeal and error &wkey;>2l5(l) —Charge not objected to when given cannot be considered.</p> <p>The Court of Civil Appeals cannot consider on defendant’s complaint a charge not objected to by it when given.</p> <p>3. Appeal and error &wkey;>245 — Absence of attorney from courtroom insufficient to justify consideration of assignment without objection.</p> <p>Absence of .defendant’s attorney from the courtroom when the court defined good faith in its charge, under the circumstances, held insufficient to justify the Court of Civil Appeals in considering, in the absence of objection, assignment of error complaining of such charge.</p>

<p>Appeal from Karnes County Court; D. O. Klingeman, Judge.</p> <p>Action by the San Antonio & Aransas Pass Railway Company against H. P. Harris and another. Erom an order overruling defendants’ pleas of privilege, they appeal.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by Charles B. Stevens against John T. Muir. Prom a judgment for plaintiff, defendant appeals.</p>