Volume 222 — South Western Reporter

<p>1. Statutes <@=>105(I) — Intention of Legislature to be ascertained, and statute upheld if possible.</p> <p>In ascertaining whether a statute is viola-tive of Const, art. 3, § 35, providing that no bill shall contain more than one subject, which shall be expressed in its title, it is incumbent on the court to ascertain the intention of the Legislature, and, if possible by fair construction, to uphold it.</p> <p>2. Statutes <@=>105(1) — Constitutional provision as to title of acts liberally construed.</p> <p>Const, art. 3, § 35, providing that no bill shall contain more than one subject, which shall be expressed in its title, should be liberally construed, rather than embarrass the Legislature by a construction the strictness of which is unnecessary for the accomplishment of the beneficial ends for which it was adopted.</p> <p>3. Statutes <@=>116 — Title of statute, making breach of immaterial provision of policy no defense, held sufficient.</p> <p>Laws 1913, e. 105 (Vernon’s Sayles’ Ann. Civ. St. 1014. arts. 4874a, 4S74b), eptitled "An act to prevent lire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance where the act breaching such provision has not contributed to bring about the loss, and declaring an emergency,” providing in section 1 (art. 4874a) “that no breach or violation by the insured of any of the warranties, conditions or provisions” of any policy shall render the policy void, or constitute a defense unless the breach contributed to bring about the loss, held not violative of Const, art. 3, § 35, providing that no bill shall contain more than one subject, to be expressed in its title; the statute having reference only to immaterial provisions.</p> <p>4. Statutes <S=> 105(1) — Title viewed as part of law and body of act referred to in construing title as to expressing subject.</p> <p>In ascertaining whether a statute is viola-tive of Const, art. 3, § 35, providing that no bill shall contain more than one subject, which shall be expressed in its title, the title of a statute will be viewed as a part of the law, and the body of the act will be referred to in construing the title.</p> <p>5. Insurance <@=>308 — Statute as to breach of immaterial provisions not applicable where risk is affected.</p> <p>Laws 1913, c. 105, § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a), providing that no breach of “any of the warranties, conditions or provisions” of any fir'e policy, or application therefor, shall constitute a defense to a suit for loss thereon unless the breach contributed to bring about destruction of the property, held to have reference only to immaterial provisions, the breach of which could in no way affect the merits of claims for losses under them, in view of section 3 and the title of the act.</p> <p>6. Insurance <@=>308 — Statute as to breach of immaterial provisions held inapplicable to certain clauses.</p> <p>Laws 1913, c. 105, § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a), making the breach of an immaterial provision of a fire policy not contributing to the destruction of the property no defense to suit thereon, Held not applicable to the proof of loss clause of standard policy, the three-fourths value clause, the coinsurance clause, the incumbrance clause, or any other clauses, the breach of which could not bring about a loss by fire.</p> <p>7. Insurance <@=>335(4) — Breach of iron-safe clause held good defense.</p> <p>Breach of the “iron-safe clause,” requiring inventory books, etc., to be kept in fireproof safe, required to be inserted in all policies covering stocks of merchandise by the Eire Commission Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4876a-4904), Held a good defense in action on policy insuring stock of millinery, notwithstanding Laws 1913, c. 105, § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a), making breach of immaterial provision in policy not contributing to loss no defense in action on policy; such statute having no application to the iron-safé clause.</p> <p>8. Insurance <@=>308 — Statute as to breach of immaterial provisions applicable only to breaches which did not in fact contribute to loss.</p> <p>Laws 1913, c. 105, § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a), providing that breach of immaterial provision of policy not contributing to destruction of property shall constitute no defense in action on policy, held applicable only to those warranties and provisions the breach of which might have contributed to bring about the loss, but which in fact did not, and not to such provisions the violation of which could not have contributed to bring about- the loss in view of Insurance Act of 1903, and Eire Insurance Commission Act, §§ 18, 19 (Vernon’á Sayles’ Ann. Civ. St. 1914, arts. 4892, 4893).</p>

R. Warren, Judge. Suit by the Ginners’ Mutual Underwriters’ Association of Texas against N. T. Masterson and others. From judgment rendered, the named defendant appeals.

<p>' Error from District Court, Jefferson County ; E. A. McDowell, Judge.</p> <p>Action by Mrs. Annie H. Johnson against T. A. Stringer and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Railroads @&wkey;l84(6) — Contributory negligence in stacking fodder near track held question for jury.</p> <p>Evidence that plaintiff stacked kaffir corn about 125 feet from a railroad track, that it was of a dry and inflammable character, and not protected from sparks, requires the submission of the issue of contributory negligence in an action for the burning of the corn.</p> <p>2. Railroads &wkey;459 (2)—Practice of stacking fodder near track does not lessen contributory negligence.</p> <p>The fact that plaintiff had for several years previously stacked inflammable fodder on his own premises so near a railroad track as to show contributory negligence gives no prescriptive right as against the railroad company to stack it there, since the railroad company could not object, nor does it lessen plaintiff’s negligence in similarly stacking the fodder which burned.</p> <p>3. Railroads ¡&wkey;466 — Doctrine of discovered peril held inapplicable to fire.</p> <p>Knowledge by a railroad company that fodder is stacked near its tracks without protection from sparks does not render it liable under the doctrine of discovered peril for failure to use care to prevent the escape of sparks.</p> <p>4. Railroads <&wkey;481 (2)—Evidence that fodder had been stacked in same place previously is incompetent.</p> <p>In an action for burning fodder where the railroad pleaded contributory negligence in stacking the fodder near the track without protection, the admission of evidence that plaintiff had similarly stacked fodder on the same premises for years before time of the fire was inadmissible. •</p> <p>5. Trial <&wkey;350(2) — Issue as to evidentiary facts need not be submitted.</p> <p>Special issues requested which called for answer as to evidentiary facts were properly refused.</p> <p>6. Trial <&wkey;35l(5) — Issues already covered need not be submitted.</p> <p>Special issues requested which were suffi ciently covered by a special issue already sub' mitted need not be given.</p> <p>7. Trial <&wkey;214 — Refusal to give correct request on care to prevent fire is erroneous.</p> <p>Where the judge did not define the rights and duties of the railroad company in the operation of its engine in respect' to preventing the escape of fire, the refusal of a correct requested instruction covering that issue would be error.</p> <p>8. Appeal and error <&wkey;2l6(4)— A correct request calls for correct charge on issue not covered, but not for more specific charge.</p> <p>A requested instruction, though defective, is sufficient to require the submission of a correct charge on an issue made by the pleadings and evidence which has not been submitted! at all; but, if the issue has been submitted generally, the party wishing a more specific charge must submit a correct instruction in order to be entitled to complain on appeal.</p> <p>9. Trial <&wkey;260(7) — Court should correctly charge railroad’s duty to prevent fire in addition to general negligence.</p> <p>Since certain facts establish prima facie negligence by a railroad in causing a fire, the court should submit the defense of -proper equipment and operation of the engine setting' out the fire, notwithstanding it had already submitted generally the issues of negligence and contributory negligence.</p>

<p>1. Evidence <&wkey;4l9(2) — Recital of deed as to ' consideration contractual and subject to pa-rol evidence rule.</p> <p>Recital, in deed of father and stepmother to their son, that it was in consideration of his relinquishment of all the claim which he might have at any time in the future to any estate which they might have, held contractual in the sense that it. was subject to the parol evidence rule.</p> <p>2. Estoppel &wkey;>22(2) — Recital as to consideration held relinquishment of claims by grantee’s son.</p> <p>Recital, in deed of father and stepmother to -son, that it was in consideration of his relinquishment of all the claim which he might have at any time in the future to any estate they might have, held to mean that the acceptance of the deed by the son was to operate as a relinquishment by him of all claims which he then had or might have in the future to property then owned by his father.</p> <p>3. Estoppel &wkey;>22(2) — Recital constituting relinquishment by grantee’s son estopped him to claim father’s other land.</p> <p>Where a son accepted from his father and stepmother deed reciting that it was in consideration of his relinquishment of all claim which he might have at any'time in the future to their estate, such son was estopped by the recital to assert title in himself to any part of the land of the father not conveyed to Mm.</p>

<p>1. insurance <&wkey;747 — Beneficiary in certificate of suspended member not entitled in view of by-laws.</p> <p>, Where mutual benefit certificate stipulated society should not be liable unless insured when he died was in good standing with his tabernacle, endowment department, and grand temple and tabernacle, certificate accordingly was not binding on society when member died, not in good standing, but suspended for failure to pay endowment tax on certificate for a quarter.</p> <p>2. Insurance <&wkey;76l — -Requirement of by-laws as to good health prevented reinstatement on payment of delinquent endowment tax..</p> <p>Where by-laws of benefit society expressly provided that, if insured was not in good health when payment of a delinquent quarterly endowment tax on his certificate was made, payment should not opferate'to reinstate him, provision must be given effect, such facts existing, as barring the beneficiary.</p>

<p>Appeal- from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Suit by W. T. Twyman against Isom Clark. Prom a judgment for defendant, plaintiff appeals.</p> <p>Appellant, Twyman, was the plaintiff in the court below. By his suit he sought (1) a recovery of the amount of a promissory note for $1,125, interest, and attorney’s fees, payable to his order ,on or before January 1, 1917, which he alleged appellee, Clark, made January 1, 1916; and (2) a foreclosure of a lien on the east half of the James Mitchum survey of 320 acres ini Harrison .county, which, he alleged, he conveyed to said Cflark by a deed dated said January 1, 1916, and on which, he further alleged, a vendor’s lien existed in his favor to secure the payment of said note.</p> <p>In his answer Clark alleged that the note sued on was without consideration, and further alleged, and at the trial proved, in substance, that in January, 1909, he owned the west half of the James Mitchum survey, and that Mrs. M. J. Burress owned the east half thereof; that, having arranged to sell the timber on the entire suryey, he, on January 30, 1909, purchased the east half thereof of Mrs. Burress, agreeing to pay her $1,120 therefor out of the proceeds of the sale of said timber; that the purchasers of the timber were to pay for same from time to time as they cut same; that Twyman agreed to act as trustee for him and Mrs. Burress in collecting the money to be paid for the timber, and in paying over to Mrs. Burress out of same the $1,120 and interest thereon which he (Clark) had agreed to pay for the land; and that Mrs. Burress was then to execute and deliver a deed conveying said east half to him (Clark). In his said answer Clark further alleged that Twyman, as such trustee, collected on account of said timber approximately $1,500, out of which he paid Mrs. Burress the amount he (Clark) had agreed to pay her for the land; that, having so paid for the land, Twyman had Mrs. Burress to convey same to him, instead of to Clark; that thereafterwards, to wit, on January 27, 1916, Twyman represented to him that the proceeds collected by him of the sale of said timber were not sufficient to pay the sum he (Clark) had agreed to pay Mrs. Burress therefor, and requested him (Clark) to execute the note sued on, assuring him that same, when executed, would be credited with the amount of said proceeds; that he (Clark) did not then, nor until the institution of this suit, know how much said Twyman had collected on account of said timber, and, having implicit confidence in Twyman, and relying on his said statement and assurance, he (Clark) executed said note.</p> <p>In a supplemental petition Twyman alleged that, shortly after Mrs. Burress conveyed the land to him, he had a settlement with Clark, in which it was agreed that Clark owed him $750 on account of the land; and that Clark then executed and delivered to him his promissory notes for sums -aggregating that amount. In said petition Twyman further alleged that about January 1,1916, he “had another and further settlement” with Clark, in which it was agreed that Clark owed him on account of said land the sum of $1,125, to cover which Clark then executed the note sued on. Twyman was a merchant; Clark, a negro about 60 years of age, who could neither read nor write — was a farmer. He had been one of Twyman’s customers during many years. It appeared from testimony heard at the trial that in January, 1916, Twyman held four- notes in his favor, for $187.50, each, purporting to have been made by Clark on January 1, 1911, and to be .secured by a vendor’s lien on the east half of the Mitchum survey, mentioned above; and that in January, 1916, and at the date of the trial, he held a note for $1,125, purporting to have been made by Clark January 1, 1916, and to be secured by a vendor's lien on said land. Twyman testified that the amount including interest, due January 1, 1916,- on the four notes for $187.-50 each, was $1,125, and that the note for that amount was made by Clark to take the place of the four notes. It further appeared from said testimony that, at the time the four notes for $1S7.50 purported to have been made, Twyman, acting for Clark, had collected $720.28 on account of timber cut on said east half of the Mitchum survey, and had paid same over to Mrs. Burress, and that he had collected sums aggregating $493.-72 on account of timber on the west half of said survey, which he credited on an open account he had against Clark. Twyman testified that, in addition to the $720.28 he had paid Mrs. Burress, as stated out of tlie proceeds of tlie sales of timber, in January, 1911, be paid ber $634.93 as tbe balance then due ber for tbe land, out of bis own funds, and bad ber convey tbe land to bim. He further testified that tbe $634.93 was less than tbe balance Mrs. Burress claimed to be due ber, and that in a settlement be bad with Clark, January 27, 1911, be claimed, and Clark agreed, that tbe latter was due bim on account of tbe land, not only tbe $634.93 be bad paid Mrs. Burress, but the difference between that sum and tbe sum Mrs. Burress claimed to be due her. That difference, be said, added to tbe $634.93, made $750, which Clark then agreed be owed on account of the land. Tbe four notes for $187.50, purporting to have been made by Clark January 1, 1911, but really made said January 27, 1911, Twy-man said, were for the $750. Clark, testifying as a witness, denied that be bad such a settlement with Twyman, and denied that be executed said four notes.</p> <p>On special issues submitted to them tbe jury found with Twyman on bis contention that he bad such a settlement with Clark in January, 1911, but they further found (and tbe finding is not attacked, as without tbe support of testimony or otherwise) that in tbe settlement Twyman agreed that tbe amount (afterwards ascertained to be $493.72, as stated above) be bad received for Clark on account of timber on tbe west half of tbe Mitchum survey, and credited on tbe open account between them, should be credited instead against tbe $750 represented by tbe four notes. It is obvious that, had tbe credit been accordingly given, it would have appeared that in January, 1916, there was a balance remaining unpaid by Clark on tbe purchase money of tbe land of only $256.28 and interest, or $384.42 instead of $750 and interest, or $1,125, tbe amount of tbe note sued on. Referring to that note, Clark testified that be—</p> <p>“didn’t know what it was; didn’t know what was in it, nor what it was for.” “I signed this paper [note],” he said, “without having read or knowing what it was. I signed it with his [Twyman’s] word. He told me, if I signed this note, he would give me .a deed and credit the timber. I thought it -was a deed. Yes, sir; I said just now, if I would sign this note, that he would give me credit for my timber.</p> <p>“Q. Then you did know it .was a note? A. He said note and deeds, too. I didn’t know it. No-, sir; I did not know as a matter of fact it was a note. I didn’t know, because they hadn’t read it.”</p> <p>Tbe witness Brown testified that be was employed by Clark to represent bim ih adjusting a controversy between bim and Twy-man in regard to tbe open account between them.</p> <p>“I made arrangements with Mr. Twyman,” the witness said, “to come to my office and fix up this personal account. He brought this land note along with him, this note for $1,125, and after we got the personal account all straightened out I told Mr. Twyman I wanted all the notes and everything he had in his possession relating to Isom’s personal account; wanted him to turn them over to Isom when he made the $250.00 note. He said he would, and did bring a lot of notes and papers relative to- Isom’s personal account, and at the same time he brought this note along. After Isom signed the note for $250, Mr. Twyman took it and looked it over, and then I says: ‘Mr. Twyman, where were the notes and other obligations you hold against Isom?’ He said: ‘They are there in an envelope.’ I said: ‘Give those to Isom, and that will square the thing up.’ He says: ‘No; I have a note here on some land Isom must sign, if I -give him these receipts; a note he will have ,to sign, if I give him these receipts.’ Then he pushed this note here out, and told Isom to sign that. Isom turned to me and says: ‘Mr. Brown, must I sign it?’ I said: ‘Isom, I don’t know anything about that transaction at all.’ .Isom says to Mr. Twyman: ‘What land is that?’ Mr. Twy-man says: ‘A part of that land you are living on.’ Isom says: ‘What part of it, Mr. Twyman?’ He said: ‘The east part.’ Isom says: Mr. Twyman, what are you going to do about the timber?’ Mr. Twyman said: ‘You and me can straighten that all up together, and Mr. Brown don’t know anything about it; you just sign it; Mr. Brown don’t know anything about it.’ Isom said: ‘What are you going to do about the timber? Those men have taken it off.’ He said: ‘You go ahead and 'sign there, and you come with me to the store, and we will straighten it out.’ Isom said: ‘Are you going to give me credit for my timber?’ Twyman said: ,‘Certainly I will; you know I give you credit for everything due you.’ Isom turned and put his mark on there, and Mr. Twyman asked me to witness it, and I did.”</p> <p>Twyman as a witness denied tbat be agreed, when Clark signed tbe note, to credit same as Clark and Brown testified be did. On tbe issue thus made tbe jury found tbat Twyman and Clark did agree, at tbe time tbe latter signed tbe $1,125 note, “tbat tbe money derived from the sale of timber on tbe west half of tbe Mitclium survey should be credited on said note.” Twyman insisted tbat tbe finding made it tbe duty of tbe court to render judgment in bis favor for tne amount of the $1,125 note, after crediting same as of tbe date of tbe trial with the $493.72 be bad collected on account of tbe timber on the west half of tbe Mitchum survey. Tbe trial court, however, construed tbe finding to tbe agreement was tbat tbe credit against tbe purchase money due Clark on tbe land on account of said timber was to be entered as of tbe dates tbe payments for tbe timber were made to Twyman, and, instead of rendering judgment for Twyman for $631.-28, rendered judgment in bis favor for $476.-85 as tbe balance due on the $1,125 note. We think tbe court correctiy construed tbe finding and did not err when he refused to render judgment in Twyman’s favor for a greater sum than he adjudged in his favor.</p>

<p>Appeal and error <@=>489 — Execution of bond suspended order appointing receiver and obligated him to return property.</p> <p>The legal effect of execution of supersede-as bond by defendant railroad, proceeded against by the state for appointment of receiver, was to suspend order appointing receiver until railroad’s appeal therefrom had been disposed of, and it became duty of receiver, if he had taken charge of property, to return it to railroad, and to refrain from exercising powers under appointment when notified of execution and approval of bond.</p>

B. Blair, Judge. Suit by the Ft. Smith Couch & Bedding Company against T. B. George, in which the defendant interposed a plea in reconvention. From the judgment rendered, plaintiff appeals.

<p>Appeal from District Court, Newton County; W. T. Davis, Judge.</p> <p>Action, by Mrs. S. N. Conn and others against the Kirby Lumber Company and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from Harris County Court; R. M. Love, Judge.</p> <p>■ Action by Anna Giles against Adolph Scheps. From a judgment for plaintiff, defendant appeals.</p>

Suit by C. E. Pruett against the Cattlemen’s Trust Company and another. • From judgment for plaintiff, defendants appealed to the Court of Civil Appeals, which reversed and rendered judgment for the named defendant (184 S. W. 716), and plaintiff brings error.

Action by Amador Gonzales against Geo. W. Yarn, administrator, and others. Prom a judgment of the Court of Civil Appeals (193' S. W. 1132), affirming a judgment for plaintiff, Varn brings error.

Trespass to try title by J. H. Holland against the Houston Oil Company of Texas. Prom judgment of Court of Civil Appeals (196 S. W. 668) affirming judgment for plaintiff, defendant brings error.

Suit by W. F. Bender against Douis Bender, in which Peter Bergstedt intervened and answered. A judgment for defendant and in-tervener was reversed and rendered by the Court of Civil Appeals (187 S. W. 735), and the intervener brings error. Judgment - of Court of Civil Appeals reversed, and that of district court affirmed.

Action by O. F. Bailey, guardian, against the Sovereign Camp, Woodmen of the World. A judgment for plaintiff was affirmed by the Court of Civil Appeals (183 S. W. 107), and defendant brings error.

Action by O. W: Wilson against T. J. Freeman, receiver oí tbe International & Great Northern Railway Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which reversed and remanded the cause (149 S. W. 418), whereupon writ of error was sued out by plaintiff to the Supreme Court, which held it was the duty of the Court of Civil Appeals to determine an excess in the judgment (108 Tex. 121, 185 S. W. 993, Ann.

<p>I.Evidence <&wkey;222(3) — Admission of defendant admissible as against him.</p> <p>In action for partition by a wido-wed daughter-in-law and sister-in-law against her mother-in-law and brother-in-law, testimony that the brother-in-law had told the witness that certain of the personal property involved belonged in equal parts to him and his brother, plaintiff’s husband, hold admissible as between plaintiff and the brother-in-law.</p> <p>2. Appeal and error &wkey;>93l(6) — Testimony heard by judge without jury presumed to have been properly applied.</p> <p>Where a case is tried before the judge without a jury, the presumption will prevail that testimony was used only on the point and between the parties to which it could legally apply; particularly where there is sufficient competent evidence to sustain the judgment.</p> <p>3. Discovery <&wkey;>70 — Refusal to admit testimony of party who failed to appear for taking of deposition within discretion of'court.</p> <p>In view of a defendant’s failure to appear for taking of her deposition on interrogatories pursuant to Rev. St. art. 3680, it was within the discretion of the trial court to refuse to allow her to testify, and to allow plaintiff to introduce the interrogatories to her in rebuttal of defendant’s evidence, pursuant to article 3685.</p> <p>4. Discovery <&wkey;54 — Notice of filing of interrogatories to parties or attorneys not required.</p> <p>Under Rev. St. art. 3682, notice to parties in a suit or their attorneys of filing of interrogatories in order to take their depositions is not required, and failure to issue such notices was not evidence of a design to intrap defendants.</p> <p>5. Husband and wife &wkey;>262(l) — Land bought during marriage presumed to have been community property.</p> <p>There is a presumption that land bought by a husband during the existence of the marital relation between Mmself and his wife was community property, and the burden was on the wife, sued, after her husband’s death, for partition, to establish that it was her separate estate even though the deed was executed to her.</p> <p>6. Husband and wife &wkey;>255 — Payment for land by wife from insurance on life of husband did not destroy community character.</p> <p>Payment of the balance of the purchase money on a tract of land purchased by a husband out of insurance money on hip life by his surviving wife to whom the deed ran did not destroy the community character of the property and stamp it as separate estate.</p> <p>7. Partition <&wkey;87 — Charge against heir of proportionate part óf purchase money ef community property held proper.</p> <p>In a daughter-in-law’s suit for partition, where the court properly decreed certain land to be community property of defendant mother-in-law, who had paid part of the purchase price with her own funds, it properly charged the daughter-in-law with her proportionate part of the purchase money paid by defendant mother-in-law.</p> <p>8. Husband and wife <&wkey;258 — Separate estate must reimburse community for proper improvements made in good faith.</p> <p>Where improvements on a wife’s land were made with community funds of husband and wife, after the husband’s death a daughter-in-law, widow of a son, was entitled to her share in such improvements as against her mother-in-law, under the rule that the separate estate of one member of the community must reimburse the community for any proper improvements made in good faith on separate estate with community funds; but, since no such claim should be permitted to affect or jeopardize the title to the land, a lien for such funds cannot be fixed on it.</p> <p>9. Husband and wife &wkey;>49i/2(8) — Evidence held to show husband intended to make gift of land to wife.</p> <p>In a daughter-in-law and sister-in-law’s action for partition against her mother-in-lawi and brother-in-law, evidence held insufficient to show that the deceased father-in-law intended to make a gift of certain land to the mother-in-law, his wife, when purchasing it.</p>

<p>Appeal from District Court, Henderson County; John S. Prince, Judge.</p> <p>Suit by W. D. McCollum and others against C. W. McManus and others. Judgment for defendants, and plaintiffs appeal.</p>

Thomas, Judge. Suit by the Atascosa Ice, Water & Light Company against the Atascosa County State Bank, in which defendant filed answer, making National Surety Company a party and seeking judgment over against it. Judgment for plaintiff against both defendants and for defendant bank over against defendant Surety Company, and the latter appeals.

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by Wirt Magee against the Missouri, Kansas & Texas Railway of Texas. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Railroads &wkey;>5j4> New, Voi. 6A Key-No. Series — Federal Director General’s order fixing venue of personal injury suits invalid.</p> <p>So much of General Orders Nos. 18 and 18a issued by the federal Director General of Railroads in 1918, as undertook to fix the venue of personal injury suits against the Director General, was invalid.</p> <p>2. Appeal and error <&wkey;l060(l), — Refusal to permit reading of answer to jury harmless, unless jury not permitted to read pleadings after retirement.</p> <p>In absence of contention and proof showing jury were not permitted to read and consider all of defendant’s pleading's after retirement, reversible error in the action of the trial court in refusing to permit defendants to read certain paragraphs of their answer to the jury is not shown.</p>

<p>1. Appeal and error <§=>499(3)— Assignment to rejection of testimony not considered where exceptions do not show objections, etc.</p> <p>Assignments of error to the rejection of testimony are not entitled to consideration where the bills of exceptions do not show the objections made to the evidence nor the ground on which they were sustained.</p> <p>2. Contracts <§=173 — Independent promissory representations no defense unless fraudulently made.</p> <p>Persons who employed an architect to make plans were liable for his services despite nonperformance of his statements as to financing the building, which were independent promissory representations, unless fraudulently made without intent to perform.</p> <p>3. Evidence <§==>441 (7)— Parol evidence contradicting writing inadmissible.</p> <p>Where a contract to compensate an architect was in writing, parol evidence contradicting, varying, or modifying its terms by showing an oral agreement of the architect to finance the building was inadmissible.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by Tiburcia Lopez against the .Missouri, Kansas & Texas Railway Company of Texas and others. ' Judgment for defendants, and plaintiff appeals.</p>

Suit by H. S. Pearson against the Prudential Life Insurance Company of Texas. To review decree for plaintiff, defendant brought error in the Court of Civil Appeals, which affirmed (188 S. W. 513), and defendant brings error. Judgment of the district court and Court of Civil Appeals reversed, and cause remanded to the district court on recommendation of the Commission of Appeals.

Gibbs, Judge. Suit by C. W. Tudor against J. D. Lancaster and Pearl Wight, receivers of the Texas & Pacific Railway Company, and against the Rio Grande, El Paso & Santa Fé Railway Company. Prom a judgment against them, and in favor of the other defendants, defendant receivers appeal. Reversed and remanded as to defendant Wight, receiver of the Texas”& Pacific Railway Company; affirmed as to the Rio Grande, El Paso & Santa Fé Railway Company and defendant Lancaster.

Action by the First National Bank of Paris, Texas, against the O’Neil Engineering Company and others. Judgment adverse to plaintiff was. modified and affirmed by the Court of Civil Appeals (176 S. W. 74), and defendants bring error. Judgment of the Court of Civil Appeals reversed, and that of district court

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

<p>1. Bills and notes <&wkey;493(3), 497(2) — Maker has burden of proving failure of consideration and assignee’s notice.</p> <p>Maker of note sued by assignee, conceding execution and delivery and assignment before •maturity, has burden of proof on defense that consideration failed and that assignee had no-ticfe thereof.</p> <p>2. Bills and notes <&wkey;5l8(l) — Failure of consideration not shown.</p> <p>Failure of consideration of note given to corporation, which was to acquire land and issue stock to maker, is not shown; there being no evidence that the land will not be acquired and the stock issued.</p>