Volume 227 — South Western Reporter

<p>!. Master and servant &wkey;>286(29) — Negligence in operating dump car held question for jury.</p> <p>In an action for the death of the brakeman of a work train, evidence held to make a question for the jury as to the employer’s negligence in not operating a dump car by air pressure, as intended by the manufacturer, instead of permitting it to close by gravity after being dumped.</p> <p>2. Master and servant <&wkey;l37(4) — Injury by dangerous use of dump car actionable.</p> <p>The moving of an open dump car with its side and bottom overhanging and forming a trap in which a brakeman standing at the usual distance from the track and intent upon his duties was caught and injured when it closed by gravity, instead of operating the car by air, as intended by its manufacturer, constituted actionable negligence, whether or not it constituted a violation of the duty to furnish a safe place to work.</p> <p>3. Trial &wkey;>360 — Unwarranted special findings disregarded, where distinct findings are made.</p> <p>When a ease is submitted on special issues, and a separate and distinct finding of negligence is made by the jury in conformity with the pleadings and proof, although a different and additional finding of negligence is unwarrantedly made under a wrong but distinctly submitted issue, the valid finding should be upheld and the improper one be disregarded; the liability being the same if the improper finding be eliminated.</p> <p>4. Appeal and error <&wkey;IO70(2) — Error in special finding held not prejudicial, where jury also found negligence in different respect.</p> <p>Where the jury in addition to finding specially that the employer failed to furnish a brakeman a reasonably safe place to work, that in so doing it was guilty of negligence, and that such negligence was the proximate cause of his injury, also found that a dump car in the manner and circumstances in which it was being operated was not reasonably safe, that the employer was negligent respecting such operation, and that such negligence was the proximate cause of the injury, any error in the finding of an unsafe place to work was harmless.</p> <p>5. Master and servant <S&wkey;226(2) — Risk of employer’s negligence not assumed, unless known or open and obvious.</p> <p>Where the employer was derelict in his duty to a brakeman in operating a dump car in a particular method, and thereby imposed an extraordinary hazard upon the brakeman, he did not as a matter of law assume the risk, unless he was specifically informed of the danger, or unless it was so open and obvious that he must necessarily have realized and comprehended it.</p> <p>6. Master and servant <&wkey;288(6) — Brakeman’s assumption of risk jury question.</p> <p>Evidence held to make a question for the jury as to whether a brakeman on a work train, injured when the overhanging bottom and side of a dump car closed by gravity after dumping, realized and comprehended the danger.</p>

<p>I.Evidence <&wkey;26 — Judicial notice taken of date of recognition of foreign government.</p> <p>The Oourt of Civil Appeals will take judicial notice of the fact that the government of the United States recognized the government of Carranza as the de facto government of the republic of Mexico on October 19, 1915, and as the de jure government on August 31, 1917.</p> <p>2. Forfeitures <&wkey;>5 — No forfeiture of property in times of peace unless judicially determined.</p> <p>In times of peace there can be no forfeiture of property unless the forfeiture be judicially determined.</p> <p>3. War <&wkey;3l— Civil and international wars supersede civil constitution and laws.</p> <p>In cases of civil as well as international wars, the laws of war supersede the civil constitution and laws, even where there is a written constitution applying in time of peace.</p> <p>4. International law &wkey;> 10 — Court of Civil Appeals may not inquire into validity of confiscatory acts of Mexican military government.</p> <p>. As affecting the title to cattle confiscated by the military government of Mexico, the Oourt of Civil Appeals may inquire only into the acts of the military government to determine whether it acted in a given way on the subject-matter, and may not inquire into the validity of its acts.</p> <p>5. Treaties <&wkey;7 — Hague conventions international, and do not apply to civil war.</p> <p>The Hague conventions are international in character and design, adapted to regulate international warfare, and do not in terms or in purpose apply to a civil war.</p> <p>6. International law &wkey;>10 — Validity of acts of chief of Mexican constitutional army as to .confiscated property cannot be questioned.</p> <p>Title to cattle in Mexico passed from the owner to the constitutional army, of which Gen. Villa was first chief and military governor, under a confiscatory decree, and the validity of Gen. Villa’s acts in dealing with the property cannot be inquired into in the courts of the United States on any ground whatever.</p>

<p>1. Removal of causes <&wkey;84 — Giving of notice to adverse party necessary.</p> <p>Cause is not removed to the federal court, so as to deprive the state court of jurisdiction to allow filing of amended petition presenting a cause not removable, by presentment to the state court of a sufficient application and bond; prior notice of intent not having been given the adverse party, as required by the federal statute.</p> <p>2. Appeal and error <&wkey;742(4) — Assignment of error must be supported by statement.</p> <p>Assignment of error to admission of telegram, over objection, which refers to or mentions no bill of exceptions, cannot be sustained, not being supported by the statement thereunder, which does not show what objection was made, nor that any exception was taken.</p> <p>3. Telegraphs and telephones <&wkey;68(I)— Mental anguish from incarceration in jail held recoverable for delay in delivering message.</p> <p>Mental anguish from being incarcerated in jail can be recovered for negligent delay in delivering telegram, the incarceration being the direct and proximate result of the delay; and not only the message, “Detained here, wire me $30 at once, send care of chief of police,” being sufficient on its face to give notice of its importance and the probable injury to the sender from delay, but the company’s agent having several times, in season to prevent delay, been told of the importance of the telegram and urged to try and have it delivered.</p> <p>4. Telegraphs and telephones <@=66(4) — Evidence held to show mental anguish from delayed delivery.</p> <p>Evidence in action for delay in delivering telegram held to show suffering of mental anguish from incarceration in jail as a result of the delay, though the fact of such suffering was not stated in exact words.</p>

<p>1. Brokers <®=>7I — Client liable for full commission when note of third party cannot be given -as agreed.</p> <p>Where defendant agreed to pay plaintiff for effecting an exchange of property with K., $1,-250 in cash and $1,250 in a note to be executed by K., but K. in completing the exchange made no notes, defendant was liable for the full $2,-500.</p> <p>2. Brokers <S=>88(5) — In action for commission, evidence of broker’s fraud insufficient to go to jury.</p> <p>In a broker’s action for commissions on an exchange of land, the court properly refused to submit to the jury the question of the broker’s fraudulent representations as to the value of the property obtained by defendant by the exchange, where there was no evidence that defendant was misled by the misrepresentations and thereby induced to promise to pay the commissions, and he at no time objected to the value of the property after inspecting it or sought to repudiate or alter his promise to plaintiff, but on the contrary confirmed it.</p> <p>3. Brokers <@=»65(l) — That agreed commission was based on excessive valuation of land held not to defeat recovery.</p> <p>That defendant’s agreement to pay plaintiff $2,500 for effecting an exchange of property was based on an excessive valuation of the property received by defendant did not defeat a recovery, where he did not object to the valuation until he sought to evade payment of the commission and did not depend on plaintiff’s representations, but made his offer of exchange subject to inspection and traded at arm’s length and with his eyes open.</p>

<p>Appeal from Dallas County Court; W. I* Thornton, Judge.</p> <p>Suit by Mrs. Toy Etta «Gardner against the Sovereign Camp, Woodmen of the World, and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Tenancy in common &wkey;>45 — Right to appropriate and convey specific part does not depend upon agreement of co-owners. \</p> <p>The right of one cotenant to appropriate or convey specific part of common property does not depend upon agreement or assent of his co-owners, but is conditioned solely upon the right being exercised without prejudice or injury to co-owners, and, having been so exercised, the grantee is entitled upon partition to have such specific part.</p>

<p>1. Appeal and error <@=>742(5) — Assignment and proposition assailing charge on different grounds than objections made held to present no error.</p> <p>Where an assignment of error complained of a paragraph of the charge and the proposition thereunder complained that certain issues were not within the law of the case as shown by objections filed, and the page of the transcript referred to showed more than one objection, but the proposition assailed the issues on entirely different grounds, no error was presented requiring a consideration of the assignment.</p> <p>2. Appeal and error <@=>742(2) — Grouping assignments contrary to rules.</p> <p>It was a violation of the rules of briefing to copy a number of assignments tog'ether followed by propositions presented under all but referring to certain specific assignments.</p> <p>3. Assault and battery <@=>15 — Shooting justified when it appeared that person shot intended to commit theft, burglary, etc.</p> <p>Under Pen. Code 1911, art. 1614, specifying when violence does not amount to assault and battery, and article 1106, relative to homicide in preventing murder, burglary, theft, etc., if defendant shot plaintiff for the purpose of preventing theft, burglary, etc., on his premises at night, and it reasonably appeared by plaintiff’s acts or words coupled with acts that it was plaintiff’s purpose to commit one of such offenses, the shooting was justifiable.</p> <p>4. Assault and battery <@=>15 — Shooting of trespasser not justified when purpose to commit offense does not reasonably appear.</p> <p>If plaintiff was merely a trespasser on defendant’s premises and was not engaged in committing theft, burglary, etc., and his acts and conduct were not such as to make it reasonably appear to defendant that he was there for that purpose, defendant was not justified in shooting him.</p> <p>5. Assault and battery <©=35 — Finding that plaintiff was on defendant’s premises at night to commit crime held justified.</p> <p>Where plaintiff was on defendant’s premises after 11 at night and secreted himself in a hedge and by stealth approached within a few feet of a window of defendant’s residence trying to obtain a view therein, and when asked what he was doing by defendant made no reply, but rose up in such a way that defendant feared bodily injury, the jury were warranted in finding that his purpose was theft, burglary, etc.</p> <p>6. Assault and battery <@=>15 — When conduct indicated purpose to .commit theft, etc., resort to other means of prevention before shooting not required.</p> <p>Where plaintiff’s conduct on defendant’s premises after 11 at night indicated that he was there for the purpose of committing theft, burglary, etc., and he was shot by defendant, Pen. Code 1911, art. 1107, providing that homicide is justifiable in the protection of person or property against unlawful and violent attacks other than those mentioned in the preceding article, but that all other means must be resorted to for the prevention of the injury, did ndt apply.</p> <p>7. Evidence <©=>314(5) — What plaintiff had heard from others inadmissible to show reason for being on defendant’s premises.</p> <p>Where- plaintiff, who was concealed on defendant’s premises at night and was shot by defendant, was permitted to state his reason for being there, evidence as to what he had heard from third persons concerning the conduct of members of defendant’s family when retiring was properly excluded as hearsay.</p> <p>8. Trial <@=>351 (2) — Special issues properly refused when requested with others not cor>-rect or covered by those submitted.</p> <p>There was no- error in refusing special issues, where they were requested and written on a single ¡¿ece of paper with a number of other issues, some of which, were not correct or were covered by those submitted by the general charge.</p> <p>On Motion for Rehearing.</p> <p>9. Assault and battery <@=»42 — Facts held suffi- . cient to raise question of reasonable apprehension.</p> <p>Evidence that plaintiff secreted himself on defendant’s premises after 11 at night, and when asked what he was doing made no reply, but rose up in such a way that defendant said he feared bodily injury, was sufficient to raise the question of whether defendant had reasonable apprehension of the commission of an offense when he shot plaintiff.</p>

<p>Appeal from District > Court, Guadalupe County; M. Kennon, Judge.</p> <p>Suit by the J. R. Watkins Medical Company against O. J. Caddell and others.' Judgment for plaintiff, and defendants appeal.</p>

<p>1. Negligence <@=o136(15) — Negligence in leaving smooth flooring around swimming pool held a question of fact.</p> <p>It cannot be said as matter of law that it was negligence for the proprietor of a swimming pool to leave a small part of the tile flooring around the pool in a smooth condition, so that a patron slipped and was injured.</p> <p>2. New trial <@=>44(3)— Should be granted for misconduct of jurors in considering items of damage not in evidence.</p> <p>It was misconduct for which defendant in a personal injury case should be granted a new trial that, as shown by testimony of jurors, not only matters of negligence not in evidence were considered by them, but items of damage not in evidence nor authorized by the charge, as hospital and doctor’s charges and attorney’s fees, were discussed by the jurors, and by part of them, at least, considered in making up the amount of the verdict.</p>

Bend County; M. S. Munson, Judge. Suit by S. Lavinia Eeris and another ágainst R. A. Bassett and others. From part of the judgment plaintiffs appeal, and from part defendant County of Ft. Bend appeals.

<p>1. Bailment <&wkey; 14(1)— Company keeping baggage for hire is responsible for loss where not exercising ordinary care.</p> <p>A news company receiving and checking passengers’ baggage , for safe-keeping is a bailee for hire performing a quasi public service, responsible for ordinary care to prevent loss, and, where it failed to deliver a valise to the owner, it was liable for the value thereof, notwithstanding a limitation to $50 liability printed on the back of the receipt or check.</p> <p>2. Bailment t&wkey;l4(l) — Limitation of liability printed on back of check given for baggage held not part of contract.</p> <p>Where defendant received a valise for safekeeping, giving a check therefor on the back of which was printed a provision limiting liability to $50, which provision was not seen by owner until the check was returned, and the valise demanded, such limitation did not become a part of the contract.</p> <p>3. Bailment &wkey;>l4(l) — Owner’s consent to limitation of liability by one caring for baggage is not presumed from amount charged.</p> <p>In an action for loss of baggage by bailee for hire, the smallness of the amount paid by owner raises no presumption that the limitation of the amount on the back of the check to $50 was reasonable and that the owner’s consent should be presumed.</p>

<p>1. Brokers <&wkey;49(3) — Not entitled to commission on owner’s failure to consummate transaction on unauthorized terms.</p> <p>Where brokers procured purchaser who agreed to buy the land on terms other than those specified in the broker’s contract, and where owner was willing to sell on terms suggested by such purchaser, but could not agree with purchaser as to date purchaser was to take possession, as to which brokerage contract was silent, and because of such failure did not consummate the transaction, the brokers were not entitled to commission.</p> <p>2. Brokers &wkey;>67 (2) — Representing both buyer and seller without their consent cannot recover commission from either.</p> <p>On grounds of public policy, broker cannot act for both buyer and seller without their conr sent, and if he does so he cannot recover his commission from either, regardless of whether the principal is injured.</p>

<p>1. Evidence <&wkey;>242(7) — Conversation between agent of lessee and opposing claimant held admissible.</p> <p>On the issue of title to a strip between lots of plaintiff and defendant, where defendants claimed under the statute of limitations, evidence of a conversation or agreement between one of the plaintiffs and the manager of the lessee of defendants’ lot concerning the strip in controversy, though made outside the presence of defendants, was admissible, where it was not conclusively shown that defendants had possession of all the property in controversy prior to that time.</p> <p>2. Trial t&wkey;207 — Court should limit evidence admissible only under controverted sitúa* tion.</p> <p>Where evidence of a conversation between defendants’ lessee and plaintiffs was admitted only because it was not conclusively shown that prior thereto defendants had possession of the strip in controversy, the court should instruct the jury that if defendants' were in possession of the entire strip in controversy prior to the conversation the agreement between plaintiff and his lessee would not be binding upon him, but that if possession was secured by the lessee by the contract with plaintiff the lessee’s possession would not support defendants’ plea’of limitations.</p>

<p>Error from District Court, Midland County ; Chas. Gibbs, Judge.</p> <p>Suit by J. J. Westmoreland against the Northwestern National Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Suit by W. H. Gray and others against the Producers’ Oil Company and others. From judgment for defendants, plaintiffs appeal.</p>

<p>Insurance &wkey;>602 — Insurer liable for statutory penalty, though demand was for amount exceeding that due.</p> <p>Insurer held liable for the 12 per cent, statutory penalty and attorney’s fee under Rev. St., art. 4746, for failure to pay amount due on policy on demand, notwithstanding that demand was for an amount in excess of that due.</p>

Error from District Court, Fayette County; M. C. Jeffrey, Judge. Proceedings by Vincencije Andrle and others against Peter Fajkus to set aside a judgment. Judgment for defendant, and plaintiffs bring error.

<p>Appeal from Harris County Court, at Raw; Roy F. Campbell, Judge.</p> <p>Action by I. E. Goggan against the W.ells Fargo & Co. Express and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Suit by. H. N. Messinger and wife against T. A. McLean and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Nuisance <&wkey;3 (4) — Erection of live stock barn restrained when use will constitute a nuisance.</p> <p>A live stock barn is not a nuisance per se; but, when the act of the parties owning the building is to use it in such a way as will constitute a nuisance, and the nuisance is imminent, the parties seeking relief are entitled to writ of injunction against its erection.</p> <p>2. Nuisance <&wkey;32 — Petition for injunction against erection of live stock barn held to state cause of action.</p> <p>Petition of parties seeking injunction against a live stock barn charging the erection of the building and its use would constitute a nuisance by creating filth, offal, excrement, etc., on the lots, held to state a cause of action for injunction.</p> <p>3. Nuisance <&wkey;36 — Judgment enjoining barn not erroneous for absence of issue and findings.</p> <p>In suit to enjoin erection of a live stock barn, judgment for plaintiffs held not erroneous for absence of any affirmative issue raised by their petition submitted to the jury and absence of findings of the jury in response to such affirmative issue submitted; the jury having in response to questions answered that the barn was not situated in an industrial district, and that it was not reasonably possible to operate it without jeopardizing the health of plaintiffs and their families.</p>

<p>1. Master and servant (&wkey;80(7) — 'Testimony as to value of service inadmissible on issue of existence of contract fixing compensation.</p> <p>In an action to recover for services rendered under an express contract to work at $75 a month, plaintiff’s testimony that part of the work done by him for defendant would cost from $10 to $15 a day if performed by experts was inadmissible.</p> <p>2. Appeal and error <&wkey;l050(l) — Opinion of plaintiff hired under contract fixing compensation as to value of services harmless.</p> <p>In an action for services under an express contract to work at $75 a month, improper admission of plaintiff’s testimony that part of the work done by him for defendant would cost from $10 to $15 a day if performed by experts held harmless to defendant.</p> <p>On Motion for Rehearing.</p> <p>3. Appeal and error <(&wkey;l 170(7)— Rule admission of immaterial evidence requires reversal unless no injury apparent does not obtain.</p> <p>The rule that the admission of immaterial evidence requires reversal unless it appears that no injury could have resulted does not obtain in Texas, where the rule is that there shall be no reversal for error of law in course of trial unless the .appellate court shall be of opinion the error complained of amounted to a denial of the rights of appellant, causing rendition of improper judgment. Rule No. 62a, 149 S. W. x.</p>

Suit by John Uloth and wife against A. Moodyman and others, and from that part of the judgment in favor of the defendant Warner Moodyman, the plaintiffs and the defendants John McNew and wife appeal.

<p>Error from District Court, San Patricio County; M. A. Childers, Judge.</p> <p>Suit by the Eureka Eire Hose Manufacturing Company against the City of Aransas Pass. Judgment for plaintiff, and defendant brings error.'</p>

<p>Appeal from District Court, Lubbock County ; W. R. Spencer, Judge.</p> <p>Suit by A. C. Wright against Bounds & Simpson, who answered, making T. W. Thomas a defendant, who in turn answered, making the Wichita Mill & Elevator Company a defendant. Judgment for plaintiff against the defendants Bounds & Simpson, and in the latter’s favor against the defendant Thomas, and in Thomas’ favor against the defendant Elevator' Company, and the last-named defendant appeals.</p>

<p>Appeal from District Court, Coryell County; J. H. Arnold, Judge.</p> <p>Suit by H.- C. Burt against J. W. Deorsam and • wife. Judgment for defendants, and plaintiff appeals.</p>

<p>I.Brokers &wkey;>85(4) — Testimony held admissible on issue of procuring cause of sale.</p> <p>In a broker’s suit for commission on sale of cattle, testimony of a witness, one of the buyers, that before another buyer went to a convention where cattle were sold he told him not to be afraid of the number of cattle, but to ■go ahead and buy them through another broker, and that he (the witness) had asked such other broker to get a price of $65 per head, etc., foelcl admissible to show matter which would have tended to influence the buyer to purchase through such other broker.</p> <p>2. Trial <&wkey;60(2) — Nonimpeaching testimony not inadmissible for lack of predicate.</p> <p>In suit for commission on sale of cattle, testimony of a witness that he and a buyer both intended to attend a cattle buyers’ convention, but he could not, and told the buyer to go down there and if he found any cattle he thought worth the money to go ahead and buy them, etc., was not inadmissible on any theory that no predicate had been laid for impeachment; such testimony not being introduced for such purpose, and not. tending to impeach the testimony of any one.</p> <p>3. Tria! &wkey;>2l9 — Failure to define “procuring cause” (of sale) not error.</p> <p>In a suit for commission on sale of cattle, the trial court did not err in failing to instruct as to the meaning of the term “procuring cause” (of sale); the words “efficient and procuring cause” as used not being technical, and not constituting such a term as the trial court ■is required to define.</p> <p>.4. Appeal and error &wkey;sll00 — Court of Civil Appeals will not express opinion on evidence on issue te be subsequently tried by jury.</p> <p>It is not proper for the Court of Civil Appeals to express an opinion on the weight or sufficiency of evidence on any issue to be subsequently tried by a jury.</p>

<p>1. Appeal and error <&wkey;l 170(3) — Erroneous sustaining of special exceptions to petition held harmless.</p> <p>Complaint could not be made by plaintiff of action of the court in sustaining special exceptions to his petition so far as it was for conversion of an automobile, where there was no testimony whatever that a particular car among those belonging to defendant was ever designated or in any way identified as one defendant had sold to plaintiff, and plaintiff's testimony clearly indicated that no particular car was ever so designated, under Rule 62a for the government of Courts of Civil Appeals (149 S. W. x).</p> <p>2. Sales &wkey;>212— Contract for automobile held executory, and plaintiff was never owner.</p> <p>Seller of car was not guilty of conversion of a car, where the contract was executory in that he had never designated or in any way identified any one of several cars as the one sold to the plaintiff.</p> <p>3. Appeal and error <&wkey;10ll(l) — Province of trial court to determine facts under conflicting evidence.</p> <p>Where the testimony was conflicting as to a matter of fact, it was the province of the trial court, and not the appellate court, to determine the question.</p> <p>4. Appeal and error &wkey;>878(6) — Appellee cannot complain of errors in judgment as to costs.</p> <p>Appellee cannot complain of errors in the judgment of the court below in awarding costs, and the appellate court is without power to disturb a judgment against it.</p>

<p>1. Homestead &wkey;>71 — Apartment over store held homestead.</p> <p>An apartment over a store in a building which was the separate property of the wife, which was fitted up as a dwelling and occupied by the wife and her son and by her husband whenever his business permitted him to be in town, was the homestead- of the husband and wife, in the absence of any evidence that the husband claimed a home elsewhere.</p> <p>2. Homestead <&wkey;38, 154 — Husband has right to designate home and determine abandonment.</p> <p>The husband, as. the head of the family, has the right to.designate the home and to determine when the homestead should be abandoned.</p> <p>On Motion for Rehearing.</p> <p>3. Homestead <&wkey;57'/2 — Evidence held not conclusive that homestead included building on adjacent lot.</p> <p>In trespass to try title to three lots and the buildings thereon, where plaintiff claimed right of occupancy as the homestead, a statement of facts showing that there were two buildings on two lots with a stairway between them to the second story held not to show conclusively that the building was not divisible into two separate parts adapted to distinct uses, so that that question should be submitted to the jury.</p> <p>4. Homestead <&wkey;7l — Not restricted to rooms occupied, but includes lot if owned by dwelling owner.</p> <p>The homestead, as constitutionally defined, is not restricted to the rooms actually occu-plied as such, but includes the lot on which the building stands, if that is owned by the owner of the dwelling.</p> <p>5. Homestead <®=»166 — Declaration hy wife held not abandonment of homestead.</p> <p>Where the homestead is the separate property of the wife, her declaration, on leaving it for a health resort, that she never expected to live there again, without any statement denying the right of her son and husband to continue to occupy it as a home, was not an abandonment of the homestead, if such an abandonment by the wife would be conclusive against the husband, where the .homestead was her separate property.</p>

<p>I. Waters and water courses <&wkey; 126(3)—Find-ings as to diverting surface waters held in irreconcilable conflict.</p> <p>In an action against a railroad for diverting surface water and causing it to flow upon and injure plaintiff’s crops, where the jury in response to special issue found that the injury was caused solely by water which fell upon land other than that of railroad’s right of way,* and not by water which had been diverted by the railroad, and in response to other special issue made an inconsistent finding that, if the railroad had not constructed its railroad in the manner complained of, the plaintiff’s crops would not have been injured, it was error for court to render judgment for plaintiff; such findings being in irreconcilable conflict.</p> <p>2. Waters and water courses 126(3) — Submission of whether defendant caused divert* ed water to augment flow from other land held error.</p> <p>In action for diversion of Surface water, injuring plaintiff’s crops, it was error for court to submit question of whether railroad had diverted water and caused it to so increase the flow of water from other land being drained by ditch between such land and plaintiff’s land as to cause such water to overflow and damage plaintiff’s crops.</p> <p>3. Waters and water courses <&wkey;l26(3) — Special issue as to whether jury could ascertain proportion of loss caused by water from other land held proper.</p> <p>In action for diversion of surface water onto plaintiff’s land, where there was no allegation that defendant had caused such diverted water to augment the flow of water from other land being drained by ditch between such land and plaintiff’s land to such extent as to cause water to overflow onto plaintiff’s land defendant was entitled to have submitted to jury special issue as to whether jury was able to ascertain the proportion of the loss, if any, caused by surface water from such other land which had not flowed over defendant’s land, since in such case defendant was liable only for the portion of the injury caused by the water diverted by it, and was entitled to judgment in its favor if the jury was unable to ascertain the amount of the proportion of injury.</p> <p>4. Waters and water courses &wkey;>119(2) — Railroad diverting water held liable, though water came from upper land.</p> <p>Where there was a ditch between adjoining land sufficient to protect lower land from surface water flowing from upper land, a railroad which so constructed and maintained its roadway as to divert water into ditch and caused water to overflow and injure crops on lower land, the railroad is liable, though part or even all of the water which was thereby caused to flow on plaintiff’s farm may have been water which had fallen upon the upper land.</p>

<p>1.Joint adventures <&wkey;4(l) — Party guilty of anticipatory breach not relied on by other could take advantage of contract.</p> <p>Where one party to a contract of partnership or joint venture for the purchase and sale of a certain tract of land to take effect in fu-turo did not accept the failure of the other party to perform, or his renunciation, as ending the contract, the contract continued to exist, and the other party, though in default originally, could take advantage of it’s provisions despite his anticipatory breach.</p> <p>2. Appeal and error. <&wkey;930(3) — No presumption of finding by court on issue submitted or requested.</p> <p>When the trial court has sought a finding of a jury on an issue, or has been requested in writing to submit an issue, it will not be presumed that the judge has so found the issue as to support a judgment, certainly not if the judgment should be contrary to the findings of the jury, even if the issue submitted or requested to be submitted is not as clear- or as accurate as it should be.</p> <p>3. Evidence <&wkey;353(l) — Book entries, contract, etc., considered in determining relation of parties.</p> <p>In an action involving a contract whereby parties were' to divide proflts from the purchase and sale of certain land, the jury had the right to consider the book entries, the contract between the parties, deeds, deed of trust, releases, etc., in determining their true relation.</p> <p>4. Payment &wkey;>4l (2) — Money derived from fund will be applied to its relief.</p> <p>Money derived from a particular source or fund will be applied to the relief of such fund.</p> <p>5. Payment <&wkey;4l (3) — Payment from proceeds of property must be applied on debt.</p> <p>A payment from the proceeds of mortgaged property must be applied in payment of the mortgage debt.</p> <p>6. Partnership &wkey;>18l — Payment from firm-fund could not be applied to individual liability of partner.</p> <p>If payment to it was made out of a partnership fund, -the creditor bank could-not apply it to the individual liability of a partner.</p> <p>7. Payment <&wkey;>44 — Creditor bank could not apply payment to subsequent, debt.</p> <p>The creditor may not apply a payment to a debt arising after payment, without an agreement or direction to such effect.</p> <p>8. Partnership &wkey;>75 — Firm member ordinarily not charged with interest on firm funds.</p> <p>Ordinarily one partner will not be charged with interest for the benefit of the firm on funds belonging to it.</p> <p>9. Trial <&wkey;203(l) — No necessity that court instruct there was no controversy as to admitted fact.</p> <p>There was no necessity that the trial court should instruct the jury that there was no controversy on a particular matter, which fact was admitted.</p> <p>10. Evidence <&wkey;104 — Testimony of widow of former party as to number of children in family immaterial and possibly prejudicial.</p> <p>In an action involving a contract whereby parties wSre to divide profits from purchase and sale of land, a widow as administratrix having been substituted for a defendant, her testimony that there were nine children in the family, etc., was immaterial and likely to arouse the sympathy of the jury.</p> <p>11. Evidence <&wkey;>!5l(2) — Testimony of inter-, vening partner as to his intentions inadmissible. '</p> <p>In an action involving a contract whereby the parties were to divide the profits arising from the purchase and sale of land, the inter-vener, one of the parties to the contract, was properly not permitted to state what his intentions were at the time the contract was made, etc.</p> <p>12. Evidence <&wkey;471 (2)— Conclusion of witness not admissible.</p> <p>Testimony which constituted a conclusion of the witness was inadmissible.</p> <p>13. Evidence &wkey;>l48 — Testimony as to sum reached by use of adding machine admissible.</p> <p>In an action involving accounts, a witness was properly permitted to testify to the sum of certain checks and items which he used an adding machine to reach instead of calculating it himself.</p> <p>14. Witnesses t&wkey;275(2J — Cross-examination of intervener proper.</p> <p>In an action involving a contract whereby parties were to divide the profits arising from the purchase and sale of land, testimony of one of the parties, an intervener, on cross-examination, that he refused to produce his books or to permit the other party to the contract access to them after the suit was begun, held admissible on the issues made by plaintiff bank and the intervener.</p> <p>15. Appeal and error <&wkey;l060(2) — Side bar remarks of counsel to refractory witness not reversible error.</p> <p>Side bar remarks made by counsel in examining a witness who indicated a disposition not to answer directly the question asked held not reversible error.</p> <p>16. Witnesses <&wkey; 175(1) — Partner’s explanation of item on memorandum introduced by administratrix of other partner should have been admitted.</p> <p>In an action involving a contract whereby the parties were to divide the profits arising from the purchase and sale of land, the action being by a bank against one of the parties, and the other intervening, the intervener’s explanation of an item appearing on a memorandum introduced in evidence by the administratrix of the other party should have been admitted.</p> <p>17. Trial <&wkey;l 15(4)— Counsel should not read memorandum to corroborate statement of party as to his entry therein.</p> <p>It was unnecessary to produce the memorandum book .of a party in corroboration of his statement as to entry made therein, and the trial court should not have permitted counsel to read the memorandum book.</p> <p>18. Evidence <&wkey;271 (19)— Self-serving letter after litigation should have been excluded.</p> <p>A letter written by a defendant to plaintiff after the litigation arose, in its nature self-serving, should have been excluded.</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>•Suit by J. C. Newton against the Thrift Oil & Gas Company No. 2. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal form District Court, Smith. County; J. R. Warren, Judge.</p> <p>Action by D. R. Pendleton and others against Lewis Bros. Judgment for plaintiffs, and defendants appeal.</p>

F. O’Neal, Judge. Suit by W. P. Bonner and others against the City of Texarkana and others. From an adverse judgment, plaintiffs appeal. July 7, 1920, the city of Texarkana, Tex., by its mayor, contracted with Stoner, Gallagher & Groos to make certain maps, etc., for said city, agreeing to pay them $7,000 therefor on February 1, 1921.

<p>Appeal from District Court, Titus County; J. A. Ward, Judge.</p> <p>Action by C. A. Adams and wife against E. E. Holland. Judgment for plaintiffs, and defendant appeals.</p> <p>June 27, 1919, appellees’ son Clarence, ’ 11 years old, while at work with his father in a field about a mile from where appellant lived, was bitten by a rabid dog belonging to appellant. July 28, 1919, the hoy died of hydrophobia caused, the testimony indicated, by the bite of the clog. Alleging that appellant was liable to them for the pecuniary loss they suffered because of the death of the boy, and also to pay them damages by way of punishment, appellees sued and recovered the judgment for $2,000 actual and $1,000 exemplary damages, from which the appeal is prosecuted.</p>

<p>Appeal from District Court, Potter County; Heniy S. Bishop, Judge.</p> <p>' Suit by L. P. Parks against J. D. Wrather and others. Judgment - for plaintiff, and defendants appeal.</p>

A. McDowell, Judge. Suit by John H. Jackson and others against A. D. Shaw and others for a second foreclosure of a deed of trust. Judgment for plaintiffs, and defendant Shaw appeals.

<p>' Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Kate S. Field against the Western Life Indemnity Company. From a judgment for plaintiff for an insufficient amount, she appeals.</p>

<p>1. Appeal and error <§=>1040(13) — Overruling of exceptions to answers harmless where case was disposed of on merits by consent.</p> <p>Overruling of plaintiffs’ exceptions to the unverified answers of defendant, the action being one for injunction, etc., was harmless, where by agreement of the parties the case was finally determined on the merits.</p> <p>2. Appeal and error <§=>1008(1) — Trial court’s fact finding will not be disturbed.</p> <p>The trial court’s finding on a pure question of fact, as the area left in a school distx-ict which was divided, will not be disturbed.</p> <p>3. Schools and school districts <§=>39 — Creation of districts largely in discretion of board of education.</p> <p>The matter of establishing and maintaining school districts is left largely to the discretion of the county board of education, and, unless it is clearly shown that such discretion has been abused, the courts wifi, not interfere.</p> <p>4. Injunction <§=>78 — Denial of injunction to correct dividing lines between districts not an I abuse of discretion.</p> <p>As the question of the maintenance and creation of school districts rests largely in the discretion of the county board of education, the refusal of a mandatory injunction to correct the dividing line mil not he deemed erroneous, though the trustees of the district seeking the injunction asserted that as the line was run numerous negro families were thrown into the second district, and that there was no sehool-house for negro children in the second district, while the first district had a substantial schoolhouse for negro children, for the courts may well presume that when the necessity for a negro school should arise in the second district, it would be provided.</p>

L. Bruce, Special Judge. Suit by the Lumbermen’s Indemnity Exchange and another, insurance carriers, against Susie Galloway and another, to set aside ruling and award of the Industrial Accident Board awarding compensation for death of the named defendant’s son, Ernest Hadnot, the employé. From judgment for plaintiffs, defendants appeal.

E. Townsend, Judge. Action by C. D. Little and O. E. Speyers, a partnership doing business under the firm name of Little & Speyers, against Ered N. Lundy. Erom a judgment for plaintiffs, defendant appeals.

<p>1. Master and servant <&wkey;286(31) — Negligence in rerailing wrecked car held question for jury.</p> <p>In an action by a member of a railroad wrecking gang whose leg was broken when a cable used to pull derailed cars on the tracks was tightened, the question of the negligence of the railroad company held for the jury.</p> <p>2. Appeal and error <&wkey;l001 (I) — Verdict supported by evidence not disturbed.</p> <p>A verdict supported by evidence will not be disturbed on appeal.</p> <p>3. Master and servant <3=217(7) — Risk of dangers discoverable by ordinary care assumed.</p> <p>A servant assumes the risks of dangers of which he has actual knowledge, and of such hazards as he should have learned by the exercise of ordinary care, but, in the absence of knowledge to the contrary, he may rely on the assumption that the master will do his duty, and is not under obligation to look out for the master’s negligence.</p> <p>4. Master and servant <§=288(16) — Assumption of risk of injury by rerailing wrecked car held question for jury.</p> <p>Where plaintiff, a member of a railroad wrecking gang rerailing a car, was injured by the tightening of a wire cable jerked by a movement of the locomotive, evidence held not to show as a matter of law that in moving the cable between the rails he was acting on his own volition, and therefore assumed the risk, but to warrant submission of a finding that he was acting under the orders of his superiors.</p> <p>5. Trial <3=351(5) — Refusal of requested special issue proper where covered by issues submitted.</p> <p>In an action for injuries suffered by plaintiff member of a railroad wrecking gang, whose leg was broken by the tightening of a wire cable, where the issues were whether defendant was guilty of negligence in moving the engine to which the cable was attached, etc., and whether it was the proximate cause of the injuries, the refusal of a requested special issue as to whether at the time of the injuries the engine was being moved in the usual and customary way was not error; the issues in the case being correctly submitted.</p> <p>6. Negligence <&wkey;l4l (12) — Charge on damages recoverable by railroad employé guiity of contributory negligence held sufficient without special issue.</p> <p>Where in an action by a railroad employé the court correctly charged the jury in accordance with Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 6649, that the damages in event of his contributory negligence should be diminished in proportion to the amount of the negligence attributable to the employé, the refusal of a special issue requiring the jury to find the total amount of damage suffered and the amount of the diminution wás not error, particularly where there was no assertion that the amount awarded was excessive.</p> <p>7. Witnesses <&wkey;252 — Pictures illustrating testimony of medical experts admissible.</p> <p>In a personal injury action, pictures of muscles described by physicians which they testified were correct were admissible as part of such description.</p>

<p>1. Evidence &wkey;>186(6) — On proof of loss of original evidence, carbon copy is admissible.</p> <p>Where a warehouseman asserted that the contract of storage was contained in a receipt delivered by him to plaintiffs, and plaintiffs, on being notified to produce, denied having received such receipt, a carbon copy of the original is admissible.</p> <p>2. Evidence <&wkey;408(7) — Warehousemen <&wkey;!2 —Warehouse receipt containing terms fixes contract, and cannot bo varied by parol evidence.</p> <p>A receipt, issued by warehouseman, stating the amount of quantity of goods received and also the conditions under which the same are to be stored, is more than a mere receipt, and is in fact a contract fixing the rights of the parties, and parol evidence is inadmissible to vary its terms in absence of fraud or mistake.</p> <p>3. Damages <&wkey;105 — Evidence of sentimental value attached to family pictures inadmissible.</p> <p>In an action against a warehouseman to recover the value of personal property which plaintiffs alleged was unlawfully sold, testimony as to sentimental value of family pictures, etc., is inadmissible.</p> <p>4. Trial &wkey;>358 — Ño judgment can be entered on confiicting findings.</p> <p>Where the special findings of the jury conflicted, one exonerating defendant of liability and another finding him liable, no judgment can be entered therein.</p> <p>5. Appeal and error &wkey;>301 — Objection that findings conflicted and did not support judgment fundamental.</p> <p>The objection that special findings of the jury conflicted, and so did not support the judgment, presents a question of fundamental error which need not be assigned in the motion for new trial to be available on appeal.</p>

<p>1. Brokers ¡s&wkey;88(l4) — Special answer 'that broker was entitled to commission of 5 per cent held responsive to issue.</p> <p>Where there was no controversy as to the price of property sold, and the court in the judgment expressly found that it sold for $7,-000, an answer by the jury to a special issue as to a reasonable- broker’s commission that 5 per cent, was a reasonable commission is responsive, and defendant vendors cannot complain that the question of the price realized was not submitted, etc.</p> <p>2. Trial <&wkey;352(6) — Special issue held not leading or suggestive.</p> <p>In a broker’s action for commission, where the owners claimed they sold to another and the broker asserted that such sale was a mere subterfuge, a special issue, following one as to whether sale was to a purchaser procured by the broker, submitting whether the sale was to a third person, and, if so, whether it was to avoid payment of the commission, was not objectionable as leading or suggestive.</p> <p>3. Trial &wkey;>352(l) — Mode of submitting special issues, in an action by a broker for commissions, not objectionable.</p> <p>In an action by a broker for commission^ for procuring a purchaser, where the owners contended that the sale was to another, special issues, submitting whether the land was sold to a purchaser procured by the broker, whether the land was sold by the owners, and whether it was sold to a third person, and, if so, for the purpose of avoiding payment of commissions, were not objectionable - on the theory that the latter question should have been submitted independently, notwithstanding the rule that a defendant is entitled to have his defenses affirmatively submitted.</p>

M. Richey, Judge. Action by Mrs. Emily E. Armstrong, for herself and as next friend of her husband, L. G. Armstrong, against W. D. Lawson and others. Prom a judgment for plaintiff defendants appeal.

<p>Appeal from Tyler County Court; W. A. Johnson, Judge.</p> <p>Action by J. C. Sims against the Texas & New Orleans Railway Company, brought in justice court and appealed to the county court. Judgment for plaintiff, and defendant appeals.</p>

<p>Evidence <&wkey;568 (4) — Plaintiff’s uncontradicted evidence as to value sufficient to authorize finding for him.</p> <p>Plaintiff’s uncontradieted testimony as to the value of a hand bag and its contents, based on his actual experience and investigations made at the time of loss, was sufficient to authorize finding for him and fixing the value in his action against an innkeeper.</p>

<p>Venue <&wkey;3 — Amendment to statute fixing venue held not applicable to actions pending.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2304, subd. 4, as amended by Acts 1917, c. 124, providing that suits for labor performed “may be brought and maintained” where labor was performed, held not applicable to cases pending at the time the amendment became operative.</p> <p>Buck, J., dissenting.</p>

<p>Error from District Court, Brewster County; Jos. Jones, Judge.</p> <p>Suit by G. S. Combs and another against J. W. Catlett. To review judgment for plaintiffs, defendant brings error.</p>

<p>Appeal from District Court, Reeves County ; Olías. Gibbs, Judge.</p> <p>Suit by Robert G. Johnson and others against the Sunshine Oil Corporation and others. Erom a judgment for defendants, plaintiffs appeal.</p>

<p>1. Judgment <®=»I5I — Motion to set aside default held insufficient.</p> <p>Motion of defendant to set aside personal judgment by default 'held insufficient as not stating the facts on which his belief was based that the controversy between the parties would be settled out of court which led him to make default.</p> <p>2. Judgment @=ml5l— Allegations that defendant had meritorious defense mere conclusion.</p> <p>Allegations, in defendant’s motion to set aside personal judgment rendered by default against him in favor of plaintiff, that he had a meritorious defense to plaintiff’s suit without stating the facts on which the defense rested, 'held merely statement of a conclusion on defendant’s part.</p> <p>3. Judgment <®=»I39, 151 — Setting aside of default rests in discretion, and defendant must show diligence and meritorious defense.</p> <p>The setting aside of a default judgment as a general rule is a matter which rests in the sound discretion of the trial court, and defendant cannot complain of refusal to set aside default without showing in his motion the judgment was not the result of a negligent failure on his part, and also that he had a meritorious defense to plaintiff’s cause of action, both of which matters must concur; the facts and not conclusions of defendant being stated.</p>

A. McDowell, Judge. Action by the Home life & Accident Company against W. W. Orchard to set aside an award, of compensation to defendant by the Industrial Accident Board. From judgment sustaining tiie award, plaintiff appeals.

<p>Appeal from District Court, Callahan County; W. R. Ely, Judge.</p> <p>Action by Mrs. M. C. Morrison against T. A. Appling and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Trial 15 — Litigant not entitled as matter of right to have bar committee set case down for trial.</p> <p>A litigant cannot, as matter of right, have his case set down for trial by the bar committee of the county, especially where the court has made no order authorizing such committee to set the cases for call on the trial docket or-to set this particular case, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1943, providing that all suits shall be called in the order in which they stand on the docket, unless otherwise ordered by the court.</p> <p>2. Continuance <®=ro| I — Court did not err in refusing to postpone case.</p> <p>Court did not err in refusing to postpone a hearing to a future day of the term on the ground that on a former partial hearing uf the case in another district it developed that other parties than plaintiff owned or had an interest in the note sued on, since the court trying the case could, on the hearing, determine the question as to the necessity of bringing in other parties; the note being made payable to plaintiff.</p> <p>3. Bills and notes <®=o443 (I) — The fact that plaintiff is not owner of note no defense.</p> <p>In an action on a note and lien the fact that plaintiff is not the real owner and holder of the note is not a matter of defense, either in bar or in abatement, and where the note itself shows the rights of plaintiff to sue at law, an inquiry as to whether there was an equitable owner aside from and behind the legal ownership is not essential to the right of defendants, unless there is a matter of defense between defendants and equitable owner, and even if it does appear, such defense will not exclude the note and indorsements thereon as evidence.</p> <p>4. Evidence >@=>185(1) — Copy of paper in possession of opponent held properly admitted, although notice not given.</p> <p>A copy of an instrument was properly admitted in evidence, although the notice required by Vernon’s Sayles’ Ann. Oiv. St, 19-14, art. 3700, was not given, and the original was not filed among the papers, where plaintiff alleged that such instrument had been recorded and was in the possession of defendant, and called upon defendant to produce the same in court upon the trial.</p> <p>5. Mortgages >@=483 — Judgment of foreclosure against a disclaiming defendant not error.</p> <p>In an action to foreclose a deed of trust on real estate, there was no reversible error in directing a foreclosure as to a defendant who disclaimed; there'being no plea as to him.</p> <p>6. Bills and notes >@=443(1) — Immaterial under what right person suing was owner.</p> <p>In an action on a note and to foreclose a deed of trust to land, a claim that plaintiff sued as payee and owner^of the note and recovered as indorsee was without merit, since it was immaterial under what right he was the owner and holder of the note.</p> <p>7. Corporations >@=389 — Company assumed to have authority to agree to extension of notes and lien in absence of showing to contrary.</p> <p>In the absence of pleading and proof to the contrary, the court must assume that a corporation, if it was authorized to make notes sued on and to create a lien on property to secure them, had the authority to provide for their payment and to agree on an extension of due dates of the notes and the lien, and one suing on the note and to foreclose the lien need not allege that the corporation had the power to agree to such extension.</p>

<p>Appeal from Liberty County Court; C. N. Smith, Judge. *</p> <p>Action by J. T. Tanner against the Houston, East & West Texas Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>I. Trial <@=3-25(11) — Defendant admitting cause of action before impaneling of jury had right to open and close argument..</p> <p>Where defendant confessed plaintiff had a good cause of action, unless he (defendant) could defeat it by proof, and asked to be permitted to open and close the argument, filing the admission and request as provided by the rule made by the Supreme Court, the trial court erred in refusing to grant such right, the admission and request having been filed after announcement of ready for tidal and impaneling of the jury, but before any pleadings were ready or evidence offered, the trial not having commenced then within the meaning of the rule.</p> <p>2. Judgment <@=>256(1)— Judge had no authority to enter judgment contrary to findings.</p> <p>The trial judge had no authority to enter judgment for plaintiff contrary to the jury’s findings.</p>

<p>Appeal from District Court, McLennan County; Erwin J. Clark, Judge.</p> <p>Suit by John P. Rowe against B. P. Roun-tree. Prom judgment on order overruling defendant’s plea of privilege, he appeals.</p>

R. Price, Judge. Proceedings for probate of will of' J. J. Mundy, deceased, by Harriet Mundy, contested by Ella D. Earl and others. From that part of the judgment admitting the codicil to probate, the contestants appeal.

<p>1. Boundaries <&wkey;30 — Owners of other surveys not affected not necessary parties.</p> <p>In trespass to try title, wherein the court undertook to fix the boundary line between two surveys, one owned by plaintiff, the other by defendant, the interests and rights of the owners of other surveys not being necessarily affected, they, not being precluded or bound by the judgment, were not necessary parties.</p> <p>2. Trespass to try title <&wkey;40(5)- — Probate proceedings admissible as muniments of title.</p> <p>In trespass to try title, one of the muni-ments in the title of plaintiff being a deed from the administrator of the estate of a decedent, certain probate orders made in the estate of such decedent, reciting that his wife and daughter were his only heirs at law, were admissible as muniments of title; plaintiff’s grantor being one of such heirs.</p> <p>3. Appeal and error <&wkey;l05l (3) — Admission of evidence harmless where point of fact admitted.</p> <p>In trespass to try title, wherein one of the muniments in the title of plaintiff was a deed from the administrator of the estate of a decedent, the admission in evidence of certain probate orders made in the estate of the decedent reciting that his wife and daughter were his only heirs at law was harmless to defendant, who admitted the wife and daughter, were the heirs .of such decedent, and that one of the links in plaintiff’s chain of title was a deed from one of such heirs.</p> <p>4. Trial &wkey;>350(l) — Refusal to submit issues relating tá mixed questions of law and fact not erroneous.</p> <p>Refusal to submit issues relating to mixed questions of law and fact was notuerroneous.</p> <p>5. Trial &wkey;>350 (8) — Refusal to submit issue on point of. fact as to which evidence undisputed not erroneous.</p> <p>Refusal to submit an issue as to a point of fact on which' the evidence was undisputed, as admitted by appellant in his brief, was not erroneous.</p> <p>On Rehearing.</p> <p>6. Boundaries <&wkey;>55 — Court must presume variance of- line from length called for arose from imperfect measurement of whole.</p> <p>Where, on a line of the same survey between remote corners, the whole length is found to vary from the length called for, in re-establishing lost intermediate monuments as marking subdivisional tracts the court must conclude, in the absence of circumstances to the contrary, that the variance arose from imperfect measurement of the whole line, and distribute such variance between the various subdivisions of the line in proportion to their respective lengths.</p> <p>7. Equity <&wkey;94 — -Ail persons affected by suit must be made parties.</p> <p>All persons interested in the object of a suit whose rights will be directly affected by the decree must be made parties.</p>

B. Minor, Judge. Suit by* George Powell against Mattie Dyer and others, wherein N. M. Marshall filed answer and cross-action. From a judgment for plaintiff and Marshall, plaintiff and defendant Dyer appeal.

<p>1. Specific performance &wkey;>l3 — Contract to convey, executed subsequent to absolute conveyance, not enforced.</p> <p>Where the execution of an absolute deed antedated a contract to convey, it was beyond the power of the court to decree specific performance of the contract; ownership of the land by the vendor at the time a suit is brought' for specific performance being essential to its maintenance.</p> <p>2. Equity <&wkey;54 — Court does not do vain thing. A court of equity never does a vain thing.</p> <p>3. Vendor and purchaser <&wkey;351 (I)— Measure of damages for breach of contract.</p> <p>The difference between the market value of the premises and the contract price is not the measure of damages in a suit for breach of contract to convey, when it is shown that the vendor has no title.</p> <p>4. Vendor and purchaser <g=»35l (I) — Amount of uncashed check not recovered by purchaser as damages.</p> <p>• In an action for damages for breach of contract to convey land, plaintiff was not entitled to recover the amount of a check given the vendor, where it was not shown.that the check was ever cashed or disposed of by the vendor; evidence'being only that the check had not been returned to the plaintiff.</p> <p>5.Pleading <&wkey;>381 (3) — Evidence as to items of damages in supplemental petition held properly excluded.</p> <p>In an action for damages for breach of contract to convey land, plaintiff cannot complain that he was not permitted to offer evidence as to certain expenses incurred by him in moving his family and household goods, where such items of damages, pleaded by plaintiff in his supplemental petition, were not in response to pleading by defendant.</p>

<p>Appeal from District Court, Eastland County ; E. A. Hill, Judge.</p> <p>Suit by L. W. Miller against Mrs. Katie Miller and others. Judgment for plaintiff against named defendant, and named defendant appeals.</p>

<p>Appeal from Erath County Court;- E. E. Soloman, Judge.</p> <p>Action by W. E. Matheney and another against J. T. Hilburn and another. Judgment for plaintiffs and defendant Hilburn appeals.</p>

<p>Appeal from Nacogdoches County Court; J. M. Marshall, Judge.</p> <p>Suit by T. J. Peterson against the Houston East & West Texas Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and error t&wkey;756 — 'Typewritten brief is “written,” and must be limited to 15 pages.</p> <p>A typewritten brief is “written” as distinguished from “printed,” and must be limited in its number of pages to 15, under Rev. St. art. 1614, and Rules of the Courts of Civil Appeals, No. 37 (149 S. W. x).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Write-Writing.]</p> <p>2. Appeal and error <&wkey;640 — Though transcript violated rules as to form, appeal not dismissed, appellee not questioning accuracy.</p> <p>Court of Civil Appeals refrained from dismissing the appeal where the transcript of the record, not in compliance with Rules for the District and County Courts, No. 90 (142 S. W. xxiii), has its sheets mutilated and fastened together with gem paper clips, running through the perforations, making the use of any sort of seal impossible; appellee not questioning correctness or completeness of transcript.</p> <p>3. Specific performance <&wkey;97(l) — Buyer who did not perform not entitled to specific performance.</p> <p>Where the buyer of land obligated himself orally to pay $76 into bank to the seller’s credit, to pay the seller’s $200 note, with accrued interest, to the bank and legally to assume payment of the seller’s $700 vendor’s lien notes to a third person, with unpaid accrued interest, and to pay taxes, but thereafter made no arrangement with the bank or with the third person by which he could be bound for paying or carrying their notes, did not pay in the $76, and allowed the taxes to go delinquent, he is not entitled to specific performance of the contract from the seller and his wife.</p> <p>4. Appeal and error i&wkey;1058(1) — Exclusion of testimony harmless, where like testimony admitted.</p> <p>Error in the exclusion of testimony was rendered harmless by the repeated admission of like testimony during trial.</p> <p>5.Specific performance <&wkey;l06(l) — Court properly exercised discretion in declining to permit bank to be impleaded as defendant.</p> <p>In suit for specific performance of contract to sell and convey land in return for plaintiff buyer’s agreement to pay $76 into bank for defendant seller, and to pay the seller’s $200 note held by the bank, the bank could not have recovered of plaintiff for the $76, nor required plaintiff to pay the note and the trial court properly exercised its discretion in declining to require or permit the bank to be impleaded as a defendant.</p>

<p>Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.</p> <p>E. J. Ward was convicted of a felony, and he appeals!</p>

<p>1. Animals <&wkey;50(2) — Burden on contestants of stock law election to show lack of qualification in signers of petition.</p> <p>When petition for a stock law election under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235, was received' and passed upon favorably by the commissioners’ court, the legal presumption is that it was sufficient, and, the court below having sustained the petition, the burden was on contestants of the election to show lack of qualification in the signers claimed by them.</p> <p>2. Animáis <&wkey;>50(2) —Person who had moved out of district when petition for stock law election filed not qualified signer.</p> <p>A person who owned land and lived in the subdivision when he signed petition for stock law election under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235, but had moved just across the line out of the district when the- petition was filed, was not a qualified signer at such time.</p> <p>3. Animals &wkey;>50 (2)— Evidence of contestants of stock law election held insufficient to show signer of petition disqualified because nonresident.</p> <p>In suit to contest stock law election under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 7235, on the ground that certain signers to the petition were disqualified, evidence held insufficient to meet the burden of proof resting on contestants to show the disqualification of a particular person on the theory that he was a nonresident of the district.</p> <p>4. Animals <&wkey;50(2) — Person forced to leave district temporarily not disqualified signer of stock law election petition.</p> <p>A signer of petition for a stock law election under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235, who, when his house burned in the district, with his children, his wife being dead, moved some 200 yards across the line of the district and lived with his mother, was not disqualified thereby to sign the petition; he having had the intention to return and build a house.</p> <p>5. Animals <&wkey;50(2) — Signer of petition for stock law election who sold land and moved from district disqualified.</p> <p>Signer of petition for stock law election under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 7235, who had sold his land and moved out of the district when the petition was filed, was disqualified.</p> <p>6. Animals <&wkey;50(2) — Signer of petition for stock law election who did not own land disqualified.</p> <p>Signer of petition for stock law election under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235, who, though he lived in the district, did not own any land in it, was disqualified.</p> <p>7. Animals &wkey;>50(2) — Heir of deceased resident landowner qualified signer and voter at stock law election.</p> <p>Signer to petition for a stock law election under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235, who lived on part of his deceased father’s homestead as heir, had such an interest in the land as made him a legal signatory to the petition and voter at the election.</p> <p>8. Elections <§=293(2) — Declarations of voters incompetent to show disqualification.</p> <p>On contest of an election as a stock law election under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235, the declarations of voters made before or after the election are incompetent to show that by reason of age or residence they were not qualified to vote.</p> <p>9. Animals <§=50(2) — Evidence of contestants of stock law election insufficient to show signers not qualified.</p> <p>On contest of a stock law election under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235, for disqualification of certain signers of the petition therefor, evidence held insufficient to meet contestants’ burden to show that a particular signer was not a legally qualified signer, and voter as a landowner.</p> <p>10. Gifts <§=25 — Title to land passes by verbal gift accompanied by possession and improvements.</p> <p>Title to land will pass by verbal gift accompanied by possession and improvements by the donee.</p> <p>11. Animals <§=50(2) — Evidence sufficient to sustain finding signer of petition for stock law election qualified; “about.”</p> <p>On contest of a stock law election under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235, for disqualification of certain signatories to the petition, evidence held sufficient to sustain the trial court’s finding that a given signer was qualified when the petition was filed, he having testified that he moved to the district “about” a date which would have qualified him, “about”. signifying no certain date, but being a relative term giving a margin for moderate variation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, About.]</p>

<p>1. Deeds <g=s>7l — Threat to prosecute relative is duress avoiding deed.</p> <p>Duress sufficient to warrant the cancellation of a deed may be practiced upon a person by threats of criminal prosecution against a near relation if the anxiety and fear of disgrace excited by such threats are so potent as to overcome the free will and choice of the person affected.</p> <p>2. Deeds <&wkey;71 — Duress avoiding deed may be practiced by representations another would prosecute sons.</p> <p>A bank cashier who represented to a mother that the bank would refuse to honor checks drawn by her sons unless she conveyed her property to the bank, and that as a result of refusal to honor the checks the sons would be arrested and thrown into jail, practiced such duress as to warrant cancellation of the conveyance; it being unnecessary that the threatened prosecution is to be by the person practicing the duress.</p>

<p>Appeal from District Court, El Paso County ; P. R. Price, Judge.</p> <p>Suit by Ella D. Earl and others against Harriet Mundy. Erom judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Hidalgo County; Hood Boone, Judge.</p> <p>Suit by the First State Bank of Donna and another against the Donna Independent School District and others. From a judgment granting writs with injunction and mandamus as prayed, defendants appeal.</p>

Suit by ¡D. L. Klepper and wife against Charles P. Rowland. A decree for plaintiffs was reformed and affirmed, by the Court of Civil Appeals (189 S. W. Í0S3), and defendant brings error.

<p>Criminal law <@=>1182 — Record held to require affirmance of judgment.</p> <p>Where the record contains no statement of facts, and the only bills of exceptions appearing are not signed or approved, and an examination of the indictment and charges show no error, and there is no error complained of in the motion for new trial which can be considered in the condition of the record, the judgment must be affirmed.</p>

<p>Appeal from District Court, Wichita County; H. F. Weldon, Judge.</p> <p>H. O. Doup was convicted of itheft, and he appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by W. W. Murray against the Houston Car Wheel & Machine Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Limestone County; A. M. Blackman, Judge.</p> <p>Suit by Irene Hay against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Bastrop County; R. J. Alexander, Judge.</p> <p>Action by Mrs. Ezra Smith, and husband against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Brokers <&wkey;67(2) — Broker held not to represent person approached so as to be entitled to commission from him.</p> <p>Where broker had land listed with him for sale or exchange and approached another in the prosecution of his agency, an agreement of such third person to trade for the land represented by the broker would not constitute the latter the agent of such third person, and he could not recover a commission from such third person unless the latter agreed to pay the commission for the exchange, and could not recover on a quantum meruit where such third person did not understand that the broker was working for him,</p> <p>2. Work and labor <&wkey;4(l) — Quantum meruit rests on knowledge of rendition of services.</p> <p>The law as to quantum meruit rests on the principle that a person will be compelled to pay for services if he stands by and permits another to render such services under such circumstances as to convince any reasonable man that they were being done with the expectation of being paid for, and no effort is made to prevent the rendition of such services, but such proposition of law is based upon the knowledge of the person served that the services were being rendered for him, and not some other person.</p>

<p>Appeal from District Court, Coleman County; J. O. Woodward, Judge.</p> <p>Action by Tim Holloman against J. L. Win-niford. A plea of privilege was overruled, and defendant appeals.</p>

<p>Appeal and error &wkey;>773(4) — Judgment affirmed for failure to file briefs.</p> <p>Where appellant has filed no brief and no errors are apparent of record, the judgment must be affirmed.</p>

<p>Trial &wkey;s352(5) — Evidentiary facts not to be grouped in special charge.</p> <p>Where a case is submitted under a general charge, the defendant is entitled to have facts pleaded as a defense and supported by testimony grouped and affirmatively submitted to the jury; hut, where the case is submitted by special issues, a special charge grouping the evi-dentiary facts is erroneous.</p>