Volume 224 — South Western Reporter

<p>Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.</p> <p>Suit by A. J. Dorsey against W. S. Kemble and others. Judgment for plaintiff against defendants not named subject to named defendant’s claim, and plaintiff appeals.</p>

<p>1. Partnership <©=>56 — Evidence held to sustain finding of ostensible partnership.</p> <p>In an action against an alleged partnership, finding of the jury that one of the defendants was estopped by his conduct to deny that he was a partner held supported by evidence.</p> <p>2. Partnership <&=36,~One whose name was improperly used should notify persons relying on partnership.</p> <p>A reasonably prudent man, knowing that his name was improperly used in a business as partnership, would have notified all persons whom he knew, or had reason to think, were relying on the existence of the partnership.</p> <p>3. Partnership <©=>218(3) — Answer held to sufficiently show that other defendants held themselves out as partners.</p> <p>In an action by lessor against lessees ana assignees of lease, answer of lessee, which adopted the pleadings of the plaintiff and prayed for judgment against assignees, held sufficient to authorize the trial court to submit the issues as to whether one of the alleged assignees had allowed the other assignee to represent that he was a partner, and whether or not lessees relied upon such representations and holding out. '</p> <p>4. Appeal and error <©=> 1052(5) — Introduction of evidence harmless, in view of determination.</p> <p>In an action against alleged partnership, admission of testimony that one of defendants had told witness that he and the other defendant were partners, if error, was not material, where the jury found that defendants were not actual partners, but only ostensible partners.</p> <p>5. Partnership <©=>50 — Statement of alleged partner as to partnership relation held admissible.</p> <p>In an action against alleged partners, on the question of whether or not one of defendants permitted himself to be held out as a partner with the other defendant, it was permissible to permit witness to testify that such other defendant told.him that defendants were partners; there being other facts shown tending to sustain the claim of estoppel.</p> <p>6. Trial <S=>60(I) — Evidence may be introduced, though dependent on subsequent showing.</p> <p>It is often necessary to introduce evidence whose admissibility depends on other evidence subsequently to be introduced, and if such later evidence is not forthcoming the trial court will, on motion, or of his own volition, exclude the preliminary evidence.</p> <p>7. Appeal and error <®=>I050(I) — Admission of evidence held harmless.</p> <p>In an action against alleged partners, where-there was evidence that one of the defendants had signed the name of the other to a contract of sale, and had sent a copy thereof to-such other defendant, who received it at his office, anil that subsequently the first defendant signed checks apparently upon a firm consisting of the names of the two defendants, and drew drafts on the other defendant in such-firm name, which were paid, admission in evidence of a statement of the first defendant that defendants were partners, if error, was harmless.</p> <p>8. Appeal and error <©=>882(8) — No complaint of testimony drawn out by own counsel.</p> <p>A party cannot complain on appeal of testimony given in response to a question propounded by his own counsel.</p> <p>9. Appeal and error <©=>1052(5) — Admission of evidence harmless, in view of determination.</p> <p>In an action against alleged partners, admission in evidence of a statement of a son of one of the defendants that the defendants were partners, if error, was harmless, where the jury found that defendants were not actual partners, but only that one of the defendants had permitted himself to be held out as a partner.</p> <p>10. Partnership <®=>56 — Finding that ostensible partner knew of use of name held sustained by evidence.</p> <p>In an action against alleged partners, evidence held to support finding that one of the defendants had actual notice that the other defendant was signing his name to contracts under a firm name.</p> <p>11. Appeal and error <§=» 1040 (10) — Overruling special exception to petition held harmless, if error.</p> <p>Failure of court to sustain a special exception to plaintiff’s petition, wherein she alleged that she had a preference lien to secure money due for pasturage, was harmless, if error, where such question was not submitted to the jury, and did not enter into the judgment rendered.</p>

<p>Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.</p> <p>Trespass -to try title by George P. Maury . against E. S. Turner. From a judgment in plaintiff’s favor for all except defendant’s interest in property, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.</p> <p>Action by Maud Johnson against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant ap- ' peals.</p>

<p>1. Appeal and error <&wkey;930(4) — Court must accept interpretation of finding supporting judgment.</p> <p>It is the duty of the court to accept a finding of the jury with the interpretation that will support the judgment, if possible, where such finding has several interpretations.</p> <p>2. Frauds, statute of &wkey;>II0(l) — Instrument held to sufficiently describe lease intended to be assigned.</p> <p>An assignment of an oil and gas lease, which referred to a certain lease made by a certain person to a certain other person, and stated that said lease was recorded in a certain county, sufficiently described the land intended to be conveyed by the instrument, if by reference to the deed records of the county and the lease offered the correct description of the property intended to be conveyed could be secured.</p> <p>3. Deeds <&wkey;90 — That certain which may be made certain.</p> <p>In construing deeds, resort must be had to the general rule that that is certain which may be made certain.</p> <p>4. Escrows <&wkey;l, 8(2) — Depositary becomes trustee for both parties.</p> <p>A delivery, made to a third person of a deed or instrument conditional on the performance of an act or the happening of an event whereupon it is to be delivered to the grantee, is an escrow, and the depositary becomes in a sense a trustee for both parties of the transaction, and neither may withdraw the deed until the happening of the condition upon which it was deposited, or until after a reasonable time given for the performance of the condition.</p> <p>5. Deeds <&wkey;54 — Delivery necessary.</p> <p>Delivery of a conveyance is just as necessary as its execution to give it legal effect.</p> <p>Buck, J., dissenting.</p> <p>On Motion for Rehearing.</p> <p>6. Frauds, statute of <&wkey;l 17 — Assignment of lease placed in escrow, sufficient as conveyance, held good memorandum in writing.</p> <p>A written assignment of an oil lease placed in escrow, sufficient as a present conveyance, was a sufficient memorandum in writing to comply with the statute of frauds.</p> <p>On Further Motion for Rehearing.</p> <p>7. Evidence &wkey;> 158(27) — Parol evidence as to land described in oil lease inadmissible.</p> <p>Parol evidence was not admissible to show the description of property intended to be conveyed in an assignment of an oil lease, which omitted the legal description, where no reason was shown why the lease itself, either the original or a certified copy, was hot offered in evidence.</p>

<p>I.Vendor and purchaser <&wkey;280(2) — -Pleading in cross-action, setting up breach of contract with parties other than plaintiffs, held demurrable.</p> <p>In action to foreclose vendor’s lien, where defendant in cross-action pleaded damages for breach of contract alleged to have been made with plaintiffs, and in support of such allegation set out contract purporting on its face to have been made with parties other than the plaintiffs, without showng by further allegation how plaintiff’s liability accrued, court did not err in sustaining general demurrer to answer.</p> <p>2. Vendor and purchaser <&wkey;35I (2) — Damages for vendors’ breach of contract to make improvements is difference in value of land.</p> <p>The measure of purchaser’s damages for vendors’ breach of contract to make permanent and extensive improvements of the land was the difference between the value of the property as it would have been if contract had been performed and its value in consequence of the breach.</p> <p>3. Vendor and purchaser <&wkey;349 — Allegation of general damages sufficient to cover vendors’ breach of contract to make improvements.</p> <p>Allegation of general damages is sufficient to entitle purchaser to recover the difference between value of land as it would have been if vendors had performed contract to make extensive and permanent improvements and its value in consequence of vendors’ failure to perform.</p> <p>4. Vendor and purchaser <&wkey;35l(7) — Purchaser’s expenses not recoverable on vendors’ breach of contract to furnish irrigation well.</p> <p>In action to foreclose vendors’ lien, in which purchaser brought cross-action for damages for vendors’ breach of contract to furnish irrigation well of certain capacity, the cost of erecting buildings on land held, too remote to be recoverable in such action.</p> <p>5. Vendor and purchaser &wkey;>35l (2) — Crop failure not special damages from vendor’s breach of contract to install irrigation well.</p> <p>In purchaser’s cross-action for vendors’ breach of contract to furnish irrigation well of certain capacity, damages sustained by purchaser because of crop failures during the time it occupied the land were not recoverable as special damages, but could be considered as a matter of evidence in estimating the difference between the value of the land as it would have been if vendors had performed contract and its value in consequence of such breach, recoverable as general damages.</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and error <&wkey;854(3)— Judgment affirmed where court sustained general demurrer without indicating ground.</p> <p>Where court sustained general and several exceptions to answer without indicating on what ground the general demurrer was sustained, judgment will be affirmed, where there was a ground on which to base ruling.</p>

<p>I.Schools and school districts 17 — Penalty moneys on school taxes became part of school fund.</p> <p>Under Ft. Worth Charter, c. 15, § 13, which took effect in 1909, and Charter of 1907, c. 10, § 156, penalty moneys collected on school taxes by the city of Ft. Worth became when collected a part of the school fund, and belonged to the board of trustees of the independent school district of Ft. Worth.</p> <p>2. Estoppel <5=362 (4) — Board of trustees of school district not estopped to sue city for penalty on taxes.</p> <p>The board of trustees of independent school district of Ft. Worth were not estopped to sue the city for penalty moneys collected on school taxes in the city of Ft. Worth during the period from January 1, 1909, to November 30, 1917.</p> <p>3. Limitation of actions <&=l 1(4) — Statute cannot he pleaded against board of trustees of school district.</p> <p>A city cannot plead the two-year statute of limitations in an action by a school district against it to recover penalty moneys collected bn school taxes by the city, such school officers exercising a portion of the sovereign powers of the state.</p> <p>4. Municipal corporations <®=>986 — City could not reimburse itself for expenses of collecting school taxes for school district.</p> <p>Under Ft. Worth City Charter 1909, c. 15, § 13, and Ft. Worth City Charter 1907, c. 10, § 156, the municipal corporation of the city of Ft. Worth had no power over moneys collected for school purposes, and could not lawfully divert any part thereof to its own reimbursement for the expense of maintaining its tax machinery by means of which all taxes in the city were required to be assessed, equalized, levied, and collected.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by the Board of Trustees of Independent School District of Et. Worth against City of Et. Worth and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Railroads <g=335l (2)—Submission of issue of discovered peril held justified.</p> <p>In an action by a motorist struck at a crossing, the submission of issue of discovered peril held justified, the fireman testifying that he saw the automobile approaching the crossing.</p> <p>2. Release <S=>55—'The burden of proof is on the party asserting the invalidity of release.</p> <p>The burden of proof is on the party asserting the invalidity of release.</p> <p>3. Appeal and error <®=> 1062( I)—Submission of validity of release raised by supplemental petition not reversible.</p> <p>In an action for damages for destruction of an automobile and injuries received in collision, where the defendant railroad company requested submission of issue whether plaintiff was caused to sign a release by fraud, duress, or imposition practiced on him, etc., and the jury answered in the affirmative, the submission of the question whether the release was obtained as alleged in the supplemental petition was not reversible error, although the issue should not have been submitted in view of the complexity of the supplemental petition.</p> <p>4. Appeal and error 1062(2)—Refusal to submit issue harmless.</p> <p>Where the jury found that plaintiff was guilty of contributory negligence, the refusal - of the court to submit that issue was harmless.</p> <p>5. Trial <©=>35 ((5) — Special issue covered properly refused.</p> <p>The refusal of an issue whether the en-ginemen were unable to avoid striking plaintiff’s car after they knew he was not going to stop was not error; the court having submitted the question whether' the operators discovered and realized plaintiff’s position of peril in time to avoid the accident.</p> <p>6. Evidence <@=121 (I) — Declarations admissible as res gestae.</p> <p>To be admissible as res gestae, declarations must either be a part or continuance of the transaction, or made under such circumstances as to raise a reasonable presumption that they are the spontaneous utterances of thoughts created by or arising out of the transaction itself, and, if they are not in their nature part of the transaction, they are inadmissible.</p> <p>7. Evidence <©=> 123 (10) — Declarations as to accident held not admissible as res gestae.</p> <p>While the admission of declarations as res geste rests largely in the discretion of the trial court, the facts must be sufficient to justify the reasonable conclusion that the declarations were made under such circumstances that reason and reflection were not dominant; hence, in an action against a railroad company for destruction of a motorcar and injuries received by the motorist, whose vehicle was struck by a train, evidence of the declarations made by passengers and others after the train had stopped that the whistle was not sounded, coupled with details of a fight between one of the spectators and the engineer, who asserted he sounded the whistle, were inadmissible as part of the res geste, such declarations having regard to the railroad company’s liability.</p> <p>8. Appeal and error <©=> I050( I)— Admission of declaration of bystander held prejudicial.</p> <p>In an action against railroad company, where the evidence as to whether the engineer sounded his whistle was conflicting, the erroneous admission of evidence of declarations by passengers, made after the accident, that whistle was not sounded, which were used to rebut the testimony of the engineer, was prejudicial.</p> <p>9. Trial <@=412 — Erroneous admission of evidence not waived by introducing similar evidence.</p> <p>In an action against railroad company arising out of crossing accident, where there was testimony that the whistle was not sounded, the fact that the railroad company brought out its version as to a fight between the engineer and another arising over dispute as to that question was not a waiver of the erroneous admission of such declarations, where the particulars of the fight were first brought out by plaintiff and defendant merely desired to prove its version.</p>

Bisiiop, Judge. Action by H. P. Trout against the Chicago, Bock Island & Gulf Railway Company and another. Judgment for plaintiff against the named defendant, and that defendant appeals.

<p>1. False imprisonment <®=o5 — 'Touching plaintiff and commanding her to return to defendant’s store was not actionable.</p> <p>The fact that defendant’s employé commanded plaintiff, who was susjiected of shoplifting, to ■ return to defendant’s store, and laid one hand on plaintiff’s arm, whereupon plaintiff returned without objection or resistance, does not show “false imprisonment” as defined in Pen. Code 1911, arts. 1039-1041, which require detention by violence or threat.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, S'alse Imprisonment.]</p> <p>2. Appeal and error <§=o855 — Verdict not sustained on theory supported by petition, but not submitted to jury.</p> <p>Where the only issue submitted to the jury was the issue of false imprisonment, which was not1 supported by the evidence, the verdict for plaintiff cannot be sustained on the ground that the petition is sufficient to support recovery on another theory which was not submitted to the jury.</p>

<p>1. New trial <§=>119 — Failure to present new evidence between trial and decision held want of diligence.</p> <p>Where more than 3 months intervened between trial of case to court and its decision, failure to present evidence discovered after trial to the judge before his decision was rendered, with, motion to reopen the case, and failure to file a motion for a new trial on that ground for several days after the decision was rendered, and until the last day of the term, shows such want of diligence that it was not an abuse of the trial court’s discretion to overrule the motion.</p> <p>2. Appeal and error <g=>981 — New trial <S=^99 —Granting of new trial within trial court’s discretion.</p> <p>The granting or denial of a new trial for newly discovered evidence is largely in the discretion of the trial judge, and his action in that respect should not be lightly revised.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by J. A. Barnes against H. N. Beak-ley. Judgment on an instructed verdict for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Marion County; J. A. Ward, Judge.</p> <p>Action by Mrs. E. V. Blair and others against the Jefferson & Northwestern Railway Company. From! judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Marion County; J. A. Ward, Judge.</p> <p>Trespass to try title by Mrs. Effie Ferguson Padgett and others against I-Iollin Hines and another. Judgment for defendants, and plaintiffs appeal.</p>

Dannanbaum, Judge. Action by Eli Lemm against D. E. Kramer and others. Erom an adverse judgment, the plaintiff and one of the defendants appeal.

<p>Error from District Court, Harris County; Lewis R. Bryan, Special Judge.</p> <p>Action by Abbie Belding and others against W. A. Smith and another, sureties on an administrator’s bond. Judgment for plaintiffs, and defendants bring error.</p>

<p>Appeal from District Court, Carson County ; W. R. Ewing, Judge.</p> <p>Action by B. Newsom against E. Cooper. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Nacogdoches County; L. D. Quinn, Judge.</p> <p>Suit by Mrs. Ennie Wilkerson, in her own behalf and as next friend of Bernice Wilkerson and others, against Walker D. Hines, Director General of Railroads, and the Houston East & West Texas Railway Company. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Evidence <§=>332(3)— Abandoned pleadings are admissible under ordinary rules of evidence.</p> <p>Abandoned pleadings may be' offered and used as evidence when relevant and material, and their relevancy and materiality is to be determined by the same rules which govern the admissibility of other testimony.</p> <p>2. Witnesses <§=5414(2) — Abandoned petition held relevant to corroborate corrected testimony by plaintiff.</p> <p>Where plaintiff in his rebuttal testimony acknowledged that he was mistaken in certain testimony given in chief, and that defendant’s witnesses were correct in that respect, the original petition, since abandoned, may be introduced by plaintiff to show that he therein stated the facts in accordance with his testimony as corrected on rebuttal.</p> <p>3. Appeal and error <§=>1050(1). — Admission of abandoned petition in evidence held not prejudicial.</p> <p>Where defendant’s witnesses contradicted plaintiff’s testimony as to the rail which was being handled when plaintiff claimed to have been injured, and plaintiff in rebuttal testified that defendant’s witnesses were correct and his testimony was incorrect, the admission of the original petition, which alleged the facts in accordance with the corrected testimony, if error, was not prejudicial to defendant.</p> <p>4. Appeal and error <§=51002 — Verdict on conflicting evidence not disturbed.</p> <p>In action for injuries to employé, where the evidence, while conflicting, was sufficient to support the verdict for plaintiff, the verdict cannot be disturbed.</p> <p>5.Appeal and error <§=>179(3) — Where contributory negligence was not conclusive, request for submission of issue is necessary.</p> <p>Where the evidence does not show that plaintiff was contributorily negligent as a matter of law for the reason stated in an assignment of error, and no request was made for the submission of contributory negligence to the jury, and it was not submitted, the verdict for plaintiff cannot be reversed because of his contributory negligence.</p>

<p>Contracts <©=>131 — Client not liable for legal services in procuring void reinstatement of lease by Department of Interior.</p> <p>Attorney cannot recover for services in procuring reinstatement of lease of coal lands by Department of Interior where order of reinstatement was a nullity; the contract to procure such order being void, illegal, and contrary to public policy.</p>

<p>Appeal from I-Iuut County Court; A.- J. Gates, Judge.</p> <p>Action by W. N. Hudson against L. A. Breeding.</p>

<p>Weapons <®=>I7(5) — Whether defendant within exemption, as residing at father’s home, where he carried a pistol, a jury question.</p> <p>Whether, under evidence introduced by defendant, charged with unlawfully carrying a pistol, in violation of Pen. Code 1911, art. 476, his relation to his father’s home, where he used the weapon in frightening away trespassers, was such as to bring him within the exemption of the statute of persons carrying arms on their own promises, though he resided part of the time elsewhere, ¡held a matter which, on defendant’s objection to the charge and request for a special charge, should have been left for the jury.</p>

Error from District Court, Potter County; Henry S. Bishop, Judge. Habeas corpus by Earl W. Faubion against Beulah Vickers and husband for the custody of a minor child. Judgment awarding custody to plaintiff, and defendants bring error.

Llewellyn, Judge. Action by Jon Henry against the Kirby Lumber Company. Prom judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which reversed, and rendered judgment for defendant, and plaintiff brought error to the Supreme Court, which reversed the judgment réndered by the Court of Civil Appeals, and remanded the cause to it with certain assignments of error to be passed upon.

<p>Appeal from District Court, Dallas County; W. E. Whitehurst, Judge.</p> <p>Interpleader suit by the ¿Etna Life Insurance Company against Mrs. Frances H. Ds-borne and others. From the judgment, plaintiff appeals.</p>

<p>Motion by H. Westerman and another for leave to file petition for mandamus against O. D. Mims, Secretary of State, and others.</p>

<p>1. Husband and wife <§=»262(l) — Property acquired during marriage presumed to belong to community.</p> <p>Where property is acquired by husband and wife during the marriage relation, there is a presumption that it is community property.</p> <p>2. Husband and wife cg=>262(I) — Showing part payment was husband’s separate property rebuts presumption of community purchase.</p> <p>Ordinarily, in the absence of contrary intention, showing that part of the initial payment for property purchased by husband and wife constituted the separate property of the husband would be sufficient to rebut the presumption the property became community property, and would require a holding that the husband owned a separate interest in the proportion his separate funds bore to the total price, whether title was taken in the name of husband, or wife, or jointly.</p> <p>3. Husband and wife <§==>249 — Status of property acquired controlled by intention.</p> <p>Except where the deed to property acquired by husband and wife expressly declares the status of the property as community or separate property, whether it is conveyed to the wife, or the husband, or to them jointly, the status is controlled by the intention of the parties at the time of taking title, which may be ascertained by parol evidence of circumstances, contemporaneous declarations, and other relevant evidence.</p> <p>4. Husband and wife <§=>264 — Evidence held to show intention for community ownership.</p> <p>In suit against a widow to recover an undivided fourth interest in land acquired by her and her husband during their marriage, evidence held to show that the parties at the time of acquiring title intended to provide for community ownership of the land.</p> <p>5. Husband and wife <§=>263 — Subsequent transactions evidentiary as to intention.</p> <p>Subsequent transactions relative to property acquired by husband and wife cannot affect the status of the title as community, or vested in one or the other party, as such question must be determined as of time when deed was taken; but they may tend to show what the intention of tile parties was with reference to the matter at time of taking deed.</p> <p>6. Witnesses 3=3159(3) — 'Testimony of widow that property was acquired by self and deceased husband for home admissible.</p> <p>In an action against a widow to recover an undivided fourth interest in land claimed by her to have been community property of herself and her deceased husband, admission of testimony of defendant widow that it was the intention of herself and husband to acquire the place for a home helé not erroneous, as within the inhibition of Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 3.690, as involving transaction with a decedent.</p> <p>7. Husband and wife .3=3274(4) — Status of property, as fixed by intention or agreements, admissible in suit by husband’s heirs.</p> <p>Evidence of intention or agreements of husband and wife in acquiring land is admissible, in an action by the husband’s heirs against the wife after the husband’s death to recover part of the land, to determine the character of the ownership of the property, whether it was acquired partly as the separate property of the husband, or wholly as community property; the status of the land as thus fixed being binding on the husband and his heirs, and others dealing with the property with notice.</p> <p>.8. Appeal and errbr <®=3l054(l) — No reversal for improper admission of testimony on trial .to court without jury.</p> <p>The trial having been to the court without a jury, error in the admission of testimony held, not to require reversal.</p>

<p>Clerks of Courts Depositions <®=»49— Deputy can take deposition only in principal’s name.</p> <p>In view of Acts 1846, 2 Gammel’s Laws, pp. 1685, 1686, and 1506, §§ 67, 21, and 23, and Rev. St. 1879, arts. 1103, 1104, 1106, and 2226, and Paschal’s Digest, arts. 496, 1431, and 7418, a deputy district clerk can take depositions only in the clerk’s name by himsqlf as deputy.</p>

B. Hopkins, Judge. Action by A. T. Wood and husband against Bertha D. Murphy, R. O. Bidwell, James M. Taylor, and others to recover the amount of a note and to foreclose a vendor’s lien retained to secure it.

<p>1. Appeal and error <8=1082(1) — Rulings on evidence on which case did not turn not substantive law.</p> <p>Where neither plaintiff’s canse of action, nor any defendant’s grounds of defense turned upon the evidence claimed to have been erroneously admitted or excluded, the question of •whether such evidence was properly admitted or excluded was not one of substantive law within rule giving Supreme Court jurisdiction of question of substantive law.</p> <p>2. Appeal and error <8=1082(1) — Questions other than of substantive law not considered general jurisdiction acquired.</p> <p>Under the 1913 statute, the Supreme Court is without jurisdiction to pass on questions not of substantive law, though it has acquired general jurisdiction over the ease.</p>

Error from District Court, Bexar County; J. T. Sluder, Judge. Action by W. C. Stewart and'J. C. Black-nail, doing business as the Stewart Realty Company, against Louis Ridder. There was a judgment for defendant, and plaintiffs bring error.

B. Hopkins, Judge. Action by R. Wbitfill against the Liz Mar Plantation Company, resulting in judgment for defendant, which was set aside and new trial granted on plaintiff’s motion, and defendant appeals.

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p>