Volume 228 — South Western Reporter

<p>1. Contracts &wkey;s|47(2) — Intention sought by construction the expressed intention.</p> <p>Intention which is the object sought by construction of a contract, and which, when ■discovered, governs in determination of rights and obligations of the parties, is not a secret ■unexpressed intention, but the intention finding ■expression in the language used.</p> <p>2. Insurance <&wkey;435 — Policy held to cover master’s liability at common law as well as under Workmen’s Compensation Act.</p> <p>Construed with a liability policy issued to an employer before enactment of Workmen’s ■Compensation Law (Laws 1913, c. 179 LVer-non’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), and binders thereafter attached, a subsequent policy, in which were merged all previous obligations, and which was made retroactive, held to cover master’s liability at common law as well as under the Compensation Act.</p>

Action by the Dallas Waste Mills against the Texas Cake & Linter Company. Judgment for defendant was affirmed by the Court of Civil Appeals (204 S. W. 868), and plaintiff brings error.

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Action by W. R. Patterson against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (204 S. W. 1026), and defendant brings error.</p>

<p>I. Corporations <&wkey;308(l I) — Petition of sales agents held to have alleged cause of action for commissions.</p> <p>Petition of agents for defendant corporation to sell ana distribute machinery and supplies manufactured by it, alleging a contract not specifying the date commissions were to be paid, but alleging that, though often requested, defendant company wholly failed and refused to pay commissions earned, sufficiently charged noneompliance with the implied stipulation of defendant company to pay commissions earned within a reasonable time, and stated a cause of action.</p> <p>2. Pleading <&wkey;34(3) — Every reasonable presumption in favor of petition indulged on demurrer.</p> <p>On demurrer, every reasonable presumption in favor of the sufficiency of the petition must be indulged.</p> <p>3. Pleading <&wkey;>l93(4) — Fast suit brought prematurely does not render petition demurra-ble.</p> <p>If suit is brought prematurely, the matter must be shown and established by the defense, and the fact does not render the petition, otherwise good, demurrable.</p>

Suit by the Security National Bank of Dallas and another against W. D. Kynerd and others. Judgment for plaintiffs was, on appeal of the named defendant alone, reversed by Court of Civil Appeals (207 S. W. 133), and plaintiffs bring error.

Suit by Ben. E. Harless against Maude White, alias Maude Nelson, wherein writ of sequestration was sued out, defendant re-plevying the property, and giving replevy bond with the General Bonding & Casualty Insurance Company as surety, plaintiff making such company a party defendant. Erom judgment of the Court of Civil Appeals (210 S. W. 307), affirming judgment for plaintiff, the insurance company brings error.

Suit by Mrs. L. W. Jordan against W. O. and J. R. Dinwiddie. From judgment for defendants, plaintiff appealed to the Court of Civil Appeals, which reversed, and render-eel judgment in favor of plaintiff (205 S. W. 862), and defendants bring error.

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Action by J. J. Beckham against the Mun-ger Oil & Cotton Company. Judgment for defendant reformed so as to be one of dismissal, and as reformed affirmed by Court of Civil Appeals (209 S. W. 186), and plaintiff brings error.</p>

<p>1. Railroads @=307(7) — Flagman required at unusually dangerous crossings.</p> <p>Bailway companies should maintain a flagman in towns and cities at crossings which are unusually dangerous or attended with more than ordinary hazard, though there is no city ordinance or statute requiring it.</p> <p>2. Trial <&wkey;l42— If facts admit of but one conclusion, they raise a question of law for the court.</p> <p>If a state of facts be such that all reasonable minds would draw the same conclusion, it presents a question of law for the court rather than a question of fact for the jury.</p> <p>3. Railroads <&wkey;350 (5) — Negligence in not maintaining flagman held question for jury.</p> <p>In.an action for the death of the driver of a vehicle struck by a woi-k train backing across the main business street of a town of 1,500 people, evidence that the crossing was unusually dangerous by reason of obstructions hindering the view and hearing helé sufficient to justify submission of the issue of defendant’s negligence in not maintaining a flagman at the time of the accident, though there was no ordinance or statute requiring a flagman.</p> <p>4. Railroads @=307(4) — Duty to maintain flagman not dependent on population, but on danger.</p> <p>The proper test for determining the question of a railroad company’s negligence in not maintaining a flagman at a crossing is not the population of the town or city, but whether the crossing is unusually dangerous and attended with more than ordinary hazard.</p> <p>5. Appeal and error @=930 (4) — Where one of three issues of negligence is held erroneous, a general verdict cannot stand.</p> <p>A contention that a verdict against defendant railroad for injuries at a crossing should not have been reversed on appeal on a finding that one issue of negligence was wrongfully submitted to the jury, because the verdict was general and there were three issues of negligence submitted, is not well taken, since the Court of Civil Appeals could not know on which issue the verdict was based.</p> <p>6. Appeal and error @=1114 — Supreme Court cannot set aside reversing and remanding judgment of Court of Appeals and affirm judgment of district court.</p> <p>Where the Court of Civil Appeals reversed and remanded a cause on the ground that an issue of negligencé was erroneously submitted, and the Supreme Court found that such issue was properly submitted, helé, that the Supreme Court could not set aside the judgment of the Court of Appeals and affirm that of the district court, but must affirm the judgment of the Court of Appeals and remand the cause for further proceedings in accordance with opinion of Supreme Court.</p>

<p>1. Sequestration &wkey;>l2 — Affidavit as to fear that defendant would injure property held sufficient.</p> <p>The statement in an affidavit for a writ of sequestration that the defendant “will make use of its possession of said property to injure said property” is a substantial and sufficient compliance with the statute requiring the affidavit to state that plaintiff fears the defendant “will injure such property” (Rev. St. 1911, art. 7094, § 4).</p> <p>2. Sequestration &wkey;> 12 — Petition held sufficient.</p> <p>An original petition for the recovery of two automobiles and damages for their retention held' not a mere petition for damages, but one for the possession of specific property warranting a writ of sequestration, in view of Rev. St. 1911, art. 7094, § 2.</p> <p>3. Sequestration <&wkey;12 — Averments of petition and prayer for relief must be considered in determining nature of petition.</p> <p>In determining whether plaintiff sued for recovery of personal property, resort must be had to the whole petition, and the averments must be read in connection with the prayer, which must be consistent with the cause of action asserted, and the relief must be authorized by the pleaded facts and cannot be granted unless prayed for, and the specific relief asked is a controlling factor, in the absence of a prayer for general relief.</p> <p>4. Sequestration <&wkey;>l2 — Motion to quash held to amount to general demurrer.</p> <p>A motion to quash sequestration proceedings, on the ground that plaintiff did not sue for the recovery of personal property, but for damages for its conversion, is, in effect, a general demurrer to the petition, and the petition should- be liberally construed and aided by all reasonable inferences and intendments when hearing the motion.</p> <p>5. Sequestration <&wkey;12 — Petition praying general relief held sufficient if special prayer he rejected.</p> <p>Under Rev. St. 1911, art. 1827, a petition must make a full and clear statement of the cause of action and other pertinent allegations deemed necessary to sustain the suit and also the nature of the relief demanded, and where there were allegations of ownership and delivery to defendant of automobiles and demand for their possession, accompanied by tender of storage charges and of special daily damages until return of the property, a demand for the properties was involved, although no specific demand therefor wás made, and the writ of sequestration was warranted by the prayer for general relief, if the special prayer be totally rejected.</p> <p>6. Sequestration <&wkey;> [2 — Motion to quash denied where averments warranted recovery and petition prayed general relief.</p> <p>While not recognizing common-law forms of action, yet, where personal property is sued for, the- legal principles governing the aetion of detinue must be resorted to and the judgment in such an action, as well as under Rev. St. 1911, art. 2368, is in the alternative for the recovery of' the property or its value, and where plaintiff’s petition entitled recovery of possession of specific personal property, and there was a prayer for general relief, a motion to quash a writ of sequestration should have been denied.</p> <p>7. Corporations <&wkey;630(6) — No judgment can be rendered against a dissolved corporation.</p> <p>Where a corporation has been dissolved, no judgment could be rendered against it.</p> <p>8. Corporations <&wkey;619 — -Judgment against stockhoiders and directors as trustees of dissolved corporation for detention of property not authorized.</p> <p>If stockholders and directors of dissolved corporation were in constructive possession of property as trustees, and were liable as the corporation would have been but for dissolution, judgment for damages for detention of such property in favor of the owner could not be rendered against them, where they owed nothing on stock subscriptions, and the corporation was wholly insolvent prior to dissolution and no property or assets thereof came into their hands after dissolution; such trustees, under Rev. St. 1911, arts. 1206, 1207, being responsible only to. creditors and stockholders, and their liability being limited to the extent of its property coming into their bands.</p> <p>9. Corporations <&wkey;6l.9i — Directors, of a dissolved corporation held not individually liable to the owner of automobiles for their detention by the corporation.</p> <p>Directors of a dissolved corporation are individually liable to the owner of automobiles for their unlawful detention by the corporation where they were nonresidents, knew nothing concerning the .automobiles, and never had them in their possession as individuals.</p>

<p>1.Judgment <&wkey;363, 379(1) — To warrant vacation, party must show meritorious defense.</p> <p>To entitle a party to set aside and vacate a judgment after the adjournment of the term at which it was rendered, he must allege a meritorious defense to the original cause of action, and show that his failure to present the defense at the proper time was not due to lack of diligence.</p> <p>2. Judgment <&wkey;443(3) — Judgment vacated where party prevented from presenting defenses by fraud. ,</p> <p>While a judgment will not be vacated after adjournment of the term to allow defendant to present a defense which might, in the exercise of diligence,- have been urged at trial, this rule has no application where the complaining party has been prevented by the fraud of his adversary from presenting such defense.</p> <p>3. Judgment c&wkey;>l43(l7) — Default vacated where taken in violation of agreement.</p> <p>Where plaintiff took a default judgment foreclosing a deed of trust in violation of an agreement that the time would be extended and the case would not be tried for a year, the default should be vacated on a showing of a meritorious defense.</p> <p>4. Injunction c&wkey;|84 — Judgment <&wkey;729 — Dissolution not conclusive on issue in case which was withdrawn, abandoned, or ruled out by court.</p> <p>Where, in violation of an agreement that an action on a note and to foreclose a deed of trust securing the same would not be tried and that the time should be extended, the creditor took a default judgment, and the debtors then filed a suit to have the judgment vacated and to enjoin foreclosure, the statement, on the hearing at which the injunction was dissolved, that the debtors abandoned any ground based on. any homestead claim, did not estop the debtors from urging the homestead claim as a ground for setting aside the default judgment; for a point is not concluded by a judgment, although it was involved in the action, or was placed in issue thereon, if it was withdrawn or abandoned or ruled out by the court.</p>

<p>1. Trial &wkey;s331 — Verdict sufficient if jury’s intention can be ascertained with reasonable certainty.</p> <p>A verdict of a jury is sufficient if it can be ascertained with reasonable certainty what the jury’s intention was, and any uncertainty can be explained by reference to the record.</p> <p>2. Trial &wkey;5327 — Verdict construed as a finding against ail defendants notwithstanding use of word “defendant.”</p> <p>In action against several defendants, verdict for plaintiff against “defendant” apportioning the damages against named defendants held, a finding against all the named defendants.</p> <p>3. Trial <&wkey;327 — Verdict against railroad in action against receiver held to support judgment against receiver.</p> <p>In action against receivers of railroads, verdict for plaintiff against “defendant” apportioning damages against the railroads without reference to the receiver of a railroad held sufficient to support a judgment against the receiver; the verdict being against all the defendants.</p> <p>4. Carriers &wkey;>l80(2)— Railroad held not jointly liable with connecting carriers for damage to shipment.</p> <p>Where initial carrier limited its liability to damage occurring on its line and did not receive goods on through contract, it was not jointly liable under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 731, with connecting carriers for damages to shipment during transportation; article 1S30, subd. 25, providing for apportionment of damage between the carriers, being applicable in such case.</p> <p>5. Carriers <&wkey;l85( I) — Last carrier presumed at fault for damage to shipment.</p> <p>In an action against connecting carriers for damage to shipment under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 25, requiring apportionment between connecting carriers when requested by either party, the last carrier is presumed to have been at fault and has burden of proving itself not at fault, or proving the proportion of damage for which it was not at fault, in which case the burden of proof is shifted to the next preceding carrier to acquit itself in the same way.</p> <p>6.Appeal and error <&wkey;l036(2) — Improper joinder harmless in absence of showing of prejudice.</p> <p>In action for damage to shipment, the improper joinder as plaintiffs of persons who had no^ interest in the goods at the time of the shipment was not prejudicial error, where the judgment rendered was conclusive that the real owner was entitled to recover, and no injury was shown to have resulted from the improper joinder.</p>

<p>1. Vendor and purchaser <&wkey;89 — Suit to forfeit for nonpayment of balance of price governed by equitable rules.</p> <p>A vendor’s suit against vendee in possession to cancel the deed and rescind the contract of sale is cognizable only in equity, and it must appear therein that the right to rescind existed when suit was brought, that it was not inequitable to permit the exercise of that right, and that plaintiff was offering to do equity.</p> <p>2. Vendor and purchaser <&wkey;89 — Right to rescind and recover property must appear in contract.</p> <p>The rights of the vendor of real estate in property conveyed under executory contract are measured by the terms of the contract, and the right to rescind and recover the property upon the strength of the vendor’s so-called superior title is but an alternative remedy which the vendor has under the contract of sale.</p> <p>3. Vendor and purchaser <&wkey;95(l) — Vendor’s right of rescission may be lost or waived.</p> <p>The vendor’s right of rescission of an exec-utory contract is by no means an absolute one, and may be lost or waived in a number of ways; and when lost it will not be revived unless to do so is necessary to protect the vendor against a successful repudiation by the ven-dee of the unsatisfied obligations of the contract under which he holds.</p> <p>4. Vendor and purchaser <&wkey;>95(2) — Vendor’s right to forfeit contract held waived.</p> <p>The vendor’s right to cancel deed to defendant vendees and to forfeit land contract for nonpayment of balance due was lost or waived where it appeared that all but $70 or less of the total consideration of $700 had been paid; that the balance was past due since 1881; that plaintiff vendor had accepted repeated payments since that date, and had continued to demand payment of the balance up to the year 1888; that from that time until 1914 no action was taken by plaintiff, during which period defendants had expended $2,500 in improving the property and the value of the land without improvements had enhanced to over $5,000; especially in view of evidence that vendees, instead of repudiating the debt, professed a willingness to pay it if they could raise the money and even offered to execute a mortgage upon the property to secure it.</p> <p>5. Vendor and purchaser &wkey;>98 — Repayment of purchase money condition of vendor’s rescission.</p> <p>For the vendor to invoke the aid of equity to cancel his deed to the vendee and rescind the contract of sale for nonpayment of the balance of the purchase price, the vendor must, especially where a large part of the purchase money has been paid, offer to pay back the purchase money and place the vendee, or those claiming under him, in statu quo.</p>

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Action by the Browning Engineering Company against W. E. Willett and others. Judgment for plaintiff was reversed and remanded by the Court of Civil Appeals (186 S. W. 352), and plaintiff brings error.</p>

Suit by Willard W. White and others against Wyatt & Wingo and another. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (207 S. W. 079), and the defendants named bring error.

<p>1. Appeal anti error &wkey;^879 — Nonappealing defendant cannot claim reversal on appeal by others.</p> <p>A defendant who .did not appeal from the judgment for plaintiff cannot, on appeal by other defendants, ask a reversal of the judgment against him, even though he suggests fundamental error as to him.</p> <p>2. Vendor and purchaser <&wkey;26l(4) — Failure to record assignment of vendor’s lien material only if assignor releases.</p> <p>Though the failure to record an assignment of a note and the vendor’s lien securing it would protect an innocent purchaser or creditor who relied upon a release or some affirmative act of the assignor to defeat the lien, such failure does not affect the right of the assignee, even against purchasers or creditors, where there is no affirmative declaration or equivalent act by the record owner of the lien.</p> <p>3. Vendor and purchaser <&wkey;2l3(2) — Vendor’s lien not subject to attachment.</p> <p>Since a vendor who reserves in his deed a lien for part of the purchase price retains no interest in the land subject to sale under execution, his interest is not subject to attachment under Rev. St. 1911, art. 254.</p> <p>4. Vendor and purchaser <&wkey;>261(5) — Attachment creditors of lien are not protected by failure to record assignment.</p> <p>Since the failure to record an assignment of a note and vendor’s lien securing it leaves the assignor, according to the record, with only his lien in the land which is not subject to attachment, such failure does not give the attaching creditor of the assignor any right superior to the assignee, even if the assignment is an instrument whose recording is not only authorized under Rev. St. 1911, art. 6823, but is required under article 6824 to be effectual against creditors and subsequent purchasers.</p> <p>5. Attachment &wkey;!78 — Lien limited to actual interest of debtor.</p> <p>Independent of the operation of registration statutes, the lien of an attaching creditor is limited to the actual interest which the debtor has-in the estate, and only through such statutes can a creditor acquire a better right or higher title than his debtor had.</p> <p>6. Attachment <&wkey;l78 — Vendor and purchaser <@=^260(2) — Property reconveyed to. vendor by unrecorded deed subject to attachment, lien held subject to vendor’s lien.'</p> <p>Creditors who attached the interest of their debtor in certain lands, in which the record showed he had only a vendor’s lien, but which in fact had been reconveyed to him by an unrecorded deed, thereby secured a lien upon the title given him by the deed, but such lien was subject to the vendor’s lien, which h.e had assigned by unrecorded assignment to another.</p>

Action by R. B. Mallard against Mrs. Mattie Day and others. A judgment for defendants Day was reversed and rendered by the Court of Civil Appeals (204 S. W. 245), and defendants Day bring error.

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Application to the probate court by Carey Murphy for an order for the payment of his claim against the estate of Mary and Gladys Ridling, minors, Opposed by A. E. Ridling, guardian. Order of district court directing guardian to pay claim, on appeal from probate court, was affirmed by Court of Civil Appeals (191 S. W. 206) and the guardian brings error.</p>

<p>1. Appeal and error <&wkey;>759 — Assignments should be copied in brief as required by rule.</p> <p>Though the statute provides that an assignment shall be sufficient which directs attention to the error complained of, the rule of the Supreme Court, providing that assignments shall be copied into the brief, should always be complied' with.</p> <p>2. Breach of marriage promise <&wkey;23 — Evidence held to show promise conditional on sexual intercourse.</p> <p>In an action for breach of promise of marriage, evidence helé not to support the allegation that, following the promise of marriage, defendant began to solicit and have sexual intercourse with plaintiff, but to show that the promise was conditional on plaintiff sleeping with defendant.</p> <p>3. Breach of marriage promise <&wkey;-7 — Will not support action when promise made in consideration of sexual intercourse.</p> <p>A promise by a man to a woman, to whom he had not previously shown any attentions or manifested any affection, that he would marry her if she would sleep with him, was based on an immoral and illegal consideration and condition, and its breach could not be made the basis of a recovery of damages.</p> <p>4. Contracts <&wkey;ll2 — Void when prejudicial to public morals.</p> <p>An agreement prejudicial to public morals, whether involving a violation of the criminal law or not, is void and of no force.</p> <p>5. Trial &wkey;>337 — Verdict contrary to law and facts when uncontradicted evidence showed facts hypothesized by disregarded charge.</p> <p>Where the court charged that, if defendant proposed to marry plaintiff if she would have sexual intercourse with him, the verdict should be for defendant, and the uncontradieted evidence showed there was no consideration for the promise, other than sexual intercourse, a verdict for plaintiff was contrary to both the law and the facts.</p>

<p>1. Principal and agent <&wkey;!36(3) — Agent may hind himself by his own contract.</p> <p>An agent, although his agency is known and who has authority to bind his principal through contract, is not precluded from binding himself personally upon such contract, and where upon a construction of the contract it is determined that the agent has substituted his own responsibility for that of his principal, or has pledged his own responsibility in addition to that of his principal, he will be bound accordingly; bis liability not being predicated upon bis agency, but upon his contract obligations.</p> <p>2. Contracts <@=^86 — Partial failure of consideration did not invalidate.</p> <p>Where mortgage company assumed payment of specified obligations in consideration of a transfer and conveyance of bank stock, and a substantial part of the stock ivas received, the partial failure of consideration did not invalidate the contract, but was a defense pro tanto thereto.</p> <p>3. Contracts <@=»2I3(I) — Notes assumed to be paid as they mature.</p> <p>Where one agreed to pay notes of another from a specified fund, it was his duty to pay the notes as they matured, in the absence of a stipulation as to the time of payment.</p> <p>4. Contracts t&wkey; 187(3) — One assuming payment of obligations must pro rate on partial failure of consideration.</p> <p>Where one agrees to pay debts of another from a specified fund in consideration of the transfer of property, he is bound to distribute the fund pro rata among the creditors, and upon failure of the debtor to transfer part of tho property the transferee can withhold from the fund an amount equaling the value of the property not transferred, but must pro rate the balance, unless some creditors are paid in full without knowledge of the partial failure of consideration; priority of maturity date of obligations being immaterial.</p> <p>5. Contracts &wkey;U64 — Contemporaneous transactions held to be construed as one contract.</p> <p>Where a corporation took a transfer of property from its president in consideration of the payment of his debts, and the same day in pursuance of resolution entered into a tripartite contract by agreement with the debtor and an agent transferring such property with other property to the agent in consideration of payment of the corporation obligations, together with those assumed, held that the transactions may be regarded as one transaction.</p> <p>6. Appeal and error <&wkey;93Q(3) — Issue not submitted assumed to have been found so as.to sustain judgment.</p> <p>Under Rev. St. 1911, art. 1985, an issue not submitted nor requested must, on appeal, be deemed as found by the court in such manner' as to support the judgment, if there be evidence to sustain the finding.</p>

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Action by H. L. Brown against John W. Searls. Judgment for plaintiff was reformed by the Court of Civil Appeals so as to reduce the amount of the recovery (204 S. W. 495), and plaintiff brings error.</p>

<p>1. Liens <&wkey;3 — Owner’s contract with paving contractor for improvement of street held to create a lien on abutting land.</p> <p>Contract by owner of lot abutting on street, granting paving contractor, “in consideration of said improvements to and upon said premises, and the fact that thereby the value thereof will be enhanced in excess of the cost * * * a mechanic’s lien on said premises to secure the payment-of indebtedness,” helé to give the contractor an enforceable lien on the abutting property of the owner to secure the owner’s indebtedness to the contractor for-paving- of the street, notwithstanding that the work was not done on the property itself, and notwithstanding that the lien was miscalled a “mechanic’s lien.”</p> <p>2. Homestead &wkey;al46 — Widow may grant lieu on homestead.</p> <p>A widow’s contract, granting paving contractor li^n on homestead to secure her indebtedness to the contractor for pavement of the street, helé valid, notwithstanding Const, art. 16, § 50, prohibiting partition of a homestead during the lifetime of the surviving wife.</p>

Supreme Judicial District. Action by Mrs. M. E. Mackechney and others against the Temple Dumber Company and others. Judgment for plaintiffs giving them insufficient relief was reversed by Court of Civil Appeals, and judgment rendered, giving them relief asked for (197 S. W. 744), and defendants bring error.

Suit by S. H. Riggs against O. G. Baleman and another. Erom judgment against the named defendant only, plaintiff appealed to the Court of- Civil Appeals, which affirmed (198 S. W. 813), and plaintiff brings error,

Action by the Fidelity Lumber Company against Mrs. R. C. Howell and- others. Judgment so far as favorable to the named defendant was reversed by the Court of Civil Appeals (206 S. W. 947), and she brings error.

<p>Error to Court of Civil Appeals of Eighth Supreme Judicial District.</p> <p>Two actions, one by C. W. Hall against C. R. Green and others, the other by the San Saba Marble Company against C. W. Hall and another. The actions were consolidated, judgment rendered for Hall and another, which was affirmed by the Court of Civil Appeals (203 S. W. 1175), and Green and others bring error.</p>

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Suit by Charles H. Ainsworth against the Houston Oil Company of Texas, in which Oliver C. Ainsworth and another intervened, and suit by the Houston Oil Company of ’Texas against C. H. Ainsworth and others. The suits were consolidated under the title Houston Oil Company of Texas, as plaintiff, and C. H. Ainsworth and others as defendants. Judgment for defendants in the consolidated cause was affirmed (192 S. TV. 614), and plaintiff brings error.</p>

<p>Error to Court of Civil Appeals of Eourth Supreme Judicial District.</p> <p>Action by the Lott Town & Improvement Company against Corilla J. Harper and another, in which defendants filed a cross-action. Judgment for-plaintiff in part was on its appeal reversed, reformed and rendered by the Court of Civil Appeals (204 S. W. 452), and defendants bring error.</p>

<p>1. Appeal and error <&wkey;>1082(2) — Failure to» appeal from original judgment held to prevent objection to appellate court judgment.</p> <p>The holder of a note which was by the district court made subject to the costs and expenses of the receivership and to the vendor’s lien notes subordinate to such certificates and costs, who did not appeal from the judgment, cannot, after it was reversed in part by the Court of Civil Appeals so as to give the vendor’s lien notes priority over the receiver’s certificates, assign error to the judgment of the Court of Civil Appeals for failure to give Ms note also priority over the receiver’s certificates, since he had elected to accept the judgment of the trial court, and the judgment of the Court of Civil Appeals placed him in no worse position.</p> <p>2. Receivers <&wkey;92 — Direction to operate plant held abuse of discretion.</p> <p>Where a town which had two light plants was not large, enough to justify the operation of both, and the plant for which a receiver was appointed could not operate at a profit without additional equipment and extensions, the order of the court authorizing the operation of the plant by the receiver was improvident and an abuse of its discretion.</p> <p>3. Receivers <&wkey;> 128 — Receiver’s certificates ¡[«providently issued are subject to vendor’s lien notes.</p> <p>Receiver’s certificates issued for the cost of operating a plant which was unnecessary and could not be operated at a profit, and which were therefore improvidently issued, are .not entitled to priority over an existing vendor’s lien on the real estate.</p>

<p>Appeal from District Court, Falls County; Prentice Oltorf, Judge.</p> <p>Basil Polk was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, Ellis County; F. L. Hawkins, Judge.</p> <p>L. W. Gumpert was convicted of passing a forged instrument, and he appeals.</p>

O. Jeffrey, Judge. Action by the Landa Cotton Oil Company against H. H. Watson. From judgment sustaining the jurisdiction against defendant’s plea of privilege, defendant appeals.

<p>Appeal from District Court, McLennan County; Erwin J. Clark, Judge..</p> <p>Suit by the Texas Life Insurance Company against the City of Waco. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, McLennan County; H. M. Richey, Judge.</p> <p>Suit by the Early-Foster Company against M. S. Barnes. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge.</p> <p>Action by Geo. A. Plummer against the National Life Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

P. Alexander, Judge. Action by John McGlasson against Antonio Fiorella, brought before a justice of the peace and appealed to the county court. From a judgment for defendant, plaintiff appeals.

<p>1. Assault and battery &wkey;s27 — Evidence of criminal prosecution against plaintiff inadmissible in action for damages.</p> <p>In an action for damages for assault and battery, court erred in admitting evidence that plaintiff and another who accompanied him had been indicted for assault in the same difficulty, and in requiring plaintiff to testify concerning the trial in the county court upon such charges, and in admitting evidence to the effect that plaintiff did not report the matter to the grand jury nor county attorney, and that grand jury did not indict defendant nor the county attorney file complaints.</p> <p>2. Assault and battery <&wkey;13 — Self-defense in civil action same as in criminal.</p> <p>The law of self-defense is the same in an action for damages for assault and battery as in a criminal prosecution, with the exception that the rule of evidence in a criminal cause gives the defendant the benefit of a reasonable doubt.</p> <p>3. Appeal and error &wkey;>750(3)— Assignment of error to admission of evidence insufficient where rejection of evidence was meant.</p> <p>An assignment of error complaining of action of court in admitting certain testimony will not be considered where the proposition thereunder and the hill of exception show that the complaint made below was at the refusal to admit testimony offered by appellant.</p> <p>4. Trial &wkey;5203(3) — Both parties have right to present charges presenting fact or facts establishing material issue.</p> <p>Both plaintiff and defendant have the right to prepare and demand charges presenting for the consideration of the jury a fact or group of facts which, if found to be true, establish in law some material issue; that is, they have the right to have the court explain to the jury the principle of law applicable to the very facts constituting a cause of action or defense.</p> <p>5. Assault and battery &wkey;> 13 — Party retreating entitled to damages.</p> <p>If an assault and battery was committed upon plaintiff by defendants because of a demonstration made by him, and they continued the attack after learning that the demonstration was not hostile, the subsequent attack was not justified by the previous apparent attack.</p> <p>6. Trial &wkey;>253(9) — Requested charge ignoring evidence too broad.</p> <p>In an action for damages for assault and battery, a charge demanded by plaintiff that, if, after the original demonstration by plaintiff ceased, defendants or any of them assaulted plaintiff, it would not be justified, and they should find for the plaintiff, was properly refused as being too broad, where there was evidence that plaintiff attempted to attack some of the defendants after the original alleged hostile demonstration.</p> <p>7. Trial <&wkey;250 — Requested charge as to verbal provocation in action for damages properly refused.</p> <p>In an action for damages for assault and battery, court did not err in refusing the plaintiff’s request to charge that, if plaintiff by his words and acts merely provoked the difficulty, and under such provocation defendants injured plaintiff, the defendants would not be justified, and they should find for the plaintiff, where under the pleading and evidence verbal provocation was alone in issue.</p>

<p>1. Constitutional law &wkey;s46(l) — Decision on question of constitutionality avoided if possible.</p> <p>The question of the constitutionality of a statute will not be passed upon if the rights of the litigants can otherwise properly be adjudicated.</p> <p>2. Constitutional law <&wkey;26, 70(3) — Legisla- . ture limited only by Constitution.</p> <p>The Legislature is omnipotent in all instances except where a limitation set upon its powers appears embedded in the Constitution, either from express inhibitions written there or from clear and conclusive implication, and its acts cannot be questioned by courts merely because judges consider them unwise, improvident, oppressive, or otherwise unsound, if a constitutional restriction, which they transcend and override, cannot be definitely indicated.</p> <p>3. Constitutional law <&wkey;8l — “Police power” defined.</p> <p>Police power is that authority which resides in every sovereignty to pass all laws for the internal regulation and government of the state necessary for the public welfare.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Police Power.]</p> <p>4. Constitutional law <&wkey;298( I) — Landlord and tenant &wkey;>320 — Prohibiting landlord from taking more than one-third of crop as rent violates due process.</p> <p>Rev. St. 1911, art. 5475, as amended in 1915 (Acts 34th Leg. c. 38 [Vernon’s Ann. Oiv. St. Supp. 1918, art. 5475]), providing that a letting of. farm lands giving to the landlord more than one-third of crops shall be void, violates the due process clauses of the state and federal Constitutions (Const. Tex. art. 1, § 19; Const. U. S. Amend. 14, § 1).</p>

Error from District Court, Dallam County; Reese Tatum, Judge. Suit by John E. Rogers against John Will-banks. Judgment rendered, settling the partnership business of plaintiff and defendant, and defendant brings error.

<p>1. Process <&wkey;34 — Citation must state nature of plaintiff’s demand.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1852, the nature of the demand must be stated sufficiently in the citation to notify the defendant of the character of the demand made against him, and, while the citation is not required to state the cause of action with the same particularity as the petition, it must correctly state the general nature of the plaintiff’s demand, without going into details.</p> <p>2. Process <&wkey;34 — Citation sufficiently stated plaintiff’s demand.</p> <p>A citation, describing cause as “a suit on three promissory notes executed by J. in favor of the F. bank, aggregating the sum of $4,731.-65, deposit having been made in the bank of the same,” held to sufficiently state the nature of the plaintiff’s demand, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1852..</p> <p>3. Dismissal and nonsuit <&wkey;57 — No dismissal for insufficiency of citation.</p> <p>Courts should not dismiss a suit by reason of the citation being fatally defective, but should continue the case, so that service might be perfected.</p>

R. Chapman, Judge. Garnishment proceeding by the Farmers’ State Bank of Merkel against the First National Bank of Anson. From a judgment sustaining a motion of the defendant to dismiss the proceeding, plaintiff appeals.

<p>1. Quo warranto <&wkey;32 — State merely a nominal party.</p> <p>In quo warranto under Kev. St. 1911, art. 639S, the state is merely a nominal party; the real party being the relator.</p> <p>2. Quo warranto c&wkey;I— Governed by rules applied to other “civil proceedings.”</p> <p>A proceeding in quo warranto under Kev. St. 1911, art. 6398, is a “civil proceeding” and is governed by the rules applied to other cases under article 6401.</p> <p>[Ed. Note. — For other definitions, see AA'ords and Phrases, First and Second Series, Civil Action — Case—Suit—etc.]</p> <p>3. Action .<&wkey;48( I)— Causes of action growing out of the same transaction should be joined.</p> <p>Joinder of all causes of action arising between the same parties in the same right and growing out of the same transaction is favored.</p> <p>4. Action @=348(1) — Quo warranto to oust from office properly joined with action to recover salary.</p> <p>Quo warranto to oust defendant from office to which plaintiff was elected was properly joined with cause of action to recover salary paid defendant.</p> <p>5. Limitation of actions <&wkey;65(2)— Cause of action for salary does not accrue until determination in quo warranto.</p> <p>Statutes of limitations did not start to run against cause of action for recovery of salary paid defendant during, occupancy of office to which plaintiff had been elected until final decision in quo warranto proceeding holding that defendant had not been entitled to the office, plaintiff’s cause of action not having accrued until such final determination.</p> <p>6. Appeal and error @=>1054(1) — Admission of immaterial matters in trial to court harmless.</p> <p>Where there was competent testimony to support judgment in case tried by court without a jury, the admission of matters immaterial or without pertinency was not ground for reversal.</p> <p>Evidence @=>337 — Register of warrants admissible to show payment to defendant of salary to which plaintiff entitled. 7.</p> <p>In action for salaries paid defendant while occupying office to which plaintiff had been elected, city register of warrants showing delivery of warrants for salary to defendant together with their payment and cancellation, where authenticity of register was proved by custodian, held admissible.</p> <p>8. Appeal and error @=>1051 (3) — Admission of evidence harmless where facts were admitted.</p> <p>In action for salaries received by defendant while occupying office to which plaintiff was elected, the admission of register of warrants showing delivery to defendant and payment of salary warrants, if error, was harmless, where defendant admitted that he received the salary during his incumbency of the office.</p> <p>9. Limitation of actions @=>196(1) — Writ of error proceedings admissible on issue of limitations.</p> <p>In quo warranto to oust defendant from office and to recover salary paid defendant while occupying office to which plaintiff had been elected, where Supreme Court on writ of error affirmed judgment ousting defendant but remanded case as to salary, the writ of error and orders thereon were admissible, on retrial of case to recover the salary paid defendant, on issue of limitations, to show, that the case was before the Supreme Court and that there was no final' judgment showing plaintiff entitled to the office until the judgment was rendered by the Supreme Court.</p>

A. Hill, Judge. Suit by W. A. Tunstill against T. F. Gris-ham and another. From judgment for defendants on demurrer'to the petition, plaintiff appeals.

<p>Appeal from County Court, Bell County; M. B. Blair, Judge.</p> <p>Action by J. W. Bigham against the Indiana Silo Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Error from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Suit by Annie E. Cbittim against Denio B. Hayner and wife. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Specifijc performance &wkey;66 — Maintainable by vendor, though recovery is only purchase price.</p> <p>Specific performance by vendor is maintainable, though the relief actually obtained by Mm is usually only the recovery of the purchase price.</p> <p>2. Venue &wkey;>22(3)— Suit at residence of one of the defendants contemplates a real defendant.</p> <p>Rev. St. art. 1830, subd. 4, in authorizing a suit in the county of the residence of one of the defendants, contemplates a real defendant, and one against whom the plaintiff has a cause of action.</p> <p>3. Escrows &wkey;>9 — ■ Performance of conditions entitling party to money deposited in escrow must be shown to recover money.</p> <p>Where a portion of the purchase price is deposited in escrow either of the parties, to recover amount thereof, must show performance of conditions entitling him thereto.</p> <p>4. Escrows <@=39 — 'Vendor entitled to portion of price in escrow on performance of his part of contract.</p> <p>Where a portion of the purchase price was placed in escrow pending consummation of the transaction, vendor was entitled thereto upon the performance of the conditions to be performed by him, notwithstanding purchaser’s failure to perform his part of the contract by payment of the balance of the cash consideration.</p> <p>5. Venue &wkey;>22(3) — Action to recover portion of price in escrow properly brought in county of depositary’s residence under article 1830, subd. 4.</p> <p>Vendor’s action to recover portion of purchase price placed in escrow on the performance of his part of contract brought against purchaser and bank with which money was deposited was properly brought in the county in which the bank was situated, under Rev. St. art. 1830, subd. 4, authorizing suit to -be brought in the county of the residence of one of the defendants; the bank being a proper defendant in such case.</p> <p>6. Venue <&wkey;7 — Action to recover portion of price in escrow properly brought in county of depositary’s residence under article 1830, subd. 5.</p> <p>Where a portion of the purchase price was deposited in escrow pending consummation of the transaction, the vendor’s action to recover such amount on performance by him of his part of contract was properly brought in the county in which bank was situated under Rev. St. art. 1830, subd. 5, providing that where a contract in writing obligates the person bound to perform in a particular county, suit may be maintained in that county, since the contract, in so far as it related to the payment of that portion of the purchase price so deposited, was to be performed in such county.</p> <p>7. Venue &wkey;»7 — Suit properly brought in county where one of the payments is to be made.</p> <p>A suit is properly brought in the county where one of the payments is to be made.</p> <p>8. Venue <&wkey;5(2) — Action for price in escrow br to foreclose lien properly brought in county where land situated.</p> <p>Vendor’s action to recover a portion of the purchase price placed in escrow pending consummation of transaction on the performance by him of his part of the contract, and in the alternative for the foreclosure of his vendor’s lien, was properly brought in the county in which the land was situated under Rev. St. art. 1830, subd. 12, authorizing suits for the foreclosure of liens to be brought in county where the property is situated.</p> <p>9. Vendor and purchaser <&wkey;257 — Legal title remains in vendor where lien is retained.</p> <p>Where a lien is retained in a note, or deed, or contract to convey title or bond for title, the legal title is in the vendor, and the equitable title is in the vendee.</p> <p>10. Vendor and purchaser <&wkey;266(2) — Vendor on breach may disaffirm and sue for land or affirm and foreclose lien.</p> <p>Where vendor retained lien to secure payment of purchase price, he may, on purchaser's default, either elect to disaffirm the contract and sue for the land, or elect to affirm and foreclose the lien.</p> <p>11. Action t&wkey;48(3)— Specific performance and to foreclose vendor’s lien properly joined.</p> <p>Vendor may sue for specific performance and to foreclose vendor’s lien in same action.</p>

<p>Appeal from District Court, Travis Coun- , tyj George Calhoun, Judge.</p> <p>Suit by the Success Company against A. L. Deveny and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Chattel mortgages <&wkey;l38(2) — Mortgage by owner of half interest In laundry held inferior to mortgage for purchase price of other half interest.</p> <p>Where defendants, having a half interest in a laundry property, gave a mortgage covering all the property to a bant, and on the day the mortgage was recorded purchased from plaintiff the other undivided half interest, plaintiff not retaining a lien in the bill of sale, but taking a mortgage to secure the purchase price which he filed forthwith, helé, that the bank’s lien was inferior to plaintiff’s lien.</p>

<p>1. Tenancy in common &wkey;>l5(5) — One tenant cannot claim by adverse possession unless he has repudiated title of cotenant.</p> <p>Possession of a cotenant will he presumed to be in right of the common title, and he will not be permitted to claim the protection of the statute of limitation unless it clearly appears that he has repudiated the title of his cotenant and is holding adversely to it.</p> <p>2. Tenancy in common <®= 15(2)— Other tenants must have actual knowledge of assertion by co-tenant of hostile claim or presumptive notice thereof.</p> <p>In partition between cotenants wherein one claims adversely, it must be shown to claim the protection of statute of limitations that the'cotenant against whom the adverse claim is asserted had actual knowledge thereof or fhat possession and assertion of a hostile claim was of such notorious character that such co-tenant would be presumed to have notice thereof.</p> <p>3. Tenancy in common &wkey;3l5(7,8) — Registration of deed under which claimant holds held constructive notice.</p> <p>In partition where a cotenant in possession claimed by adverse possession, the registration of a deed under which he held was constructive notice to his cotenants of the existence of the deed.</p> <p>4. Tenancy in common <©=» 15(!0)— Evidence held to sustain finding of adverse possession by cotenant.</p> <p>In partition where a cotenant claimed the land by adverse possession, evidence held to warrant a finding that the possession and assertion of adverse claim under a recorded deed was of such unequivocal and notorious character and so long continued that it could be presumed that plaintiffs had notice thereof, and their rights were barred by limitation.</p>

<p>1. Alteration of instruments <@=>7 — Filling in blanks in oil lease held material alteration.</p> <p>Where the clause in an oil lease providing for payment to extend the time for completing the well had unfilled blanks for designating the place and amount of the payments and the extension thereby secured when the lease was executed, the unauthorized filling of those blanks by the lessee was a material alteration of the lease, which was not binding on the lessors.</p> <p>2. Alteration of instruments &wkey;j29 — Evidence held to show unauthorized alteration of oil lease after execution.</p> <p>Where two disinterested witnesses testified that the blanks in the clause of an oil lease providing for extension of the time for completing the well were not filled in when the lease was executed, and the lessor testified he had given the lessee no authority to fill in those blanks, the evidence was sufficient to sustain a finding that the filling in of the blanks was an alteration subsequent to the execution of the lease.</p>

<p>Appeal from Collin County Court; R. L. Moulden, Judge.</p> <p>Suit by W. J. Powell against H. Mulder^ Prom judgment for defendant, plaintiff appeals.</p>

P. Alexander, Judge. Suit by Lipman, Speir & Halm against Bruck Bros. Judgment for the plaintiffs in the county court on appeal from the justice of the peace, and defendants appeal.

<p>I.Adverse possession <&wkey;44 — Vacancy for two-month periods between successive occupancies held not to break continuity of possession.</p> <p>In trespass to try title, in which plaintiff claimed title, under the statutes of limitation, finding of continued occupancy during required period held warranted, notwithstanding that in several instances there was a period of about two months between the time when one occupant moved out and another moved in.</p> <p>2. Appeal and error <&wkey;93l (6) — Trial court presumed not influenced by incompetent evidence.</p> <p>It will be presumed that the court trying the case without a jury was not influenced by incompetent evidence, in the absence of a contrary showing.</p> <p>3. Evidence <&wkey;353 (3) — Extraneous and self-serving declarations In deed not admissible against stranger to deed.</p> <p>Extraneous and self-serving declarations in a deed of conveyance are not admissible in evidence against stranger to the deed.</p> <p>4. Evidence <§=353 (3) — Recitals in deed admissible to show privity between plaintiff and predecessor.</p> <p>In trespass to try title, in which plaintiff claimed to have acquired title by adverse possession, recitals in deed to plaintiff from predecessor, offered not as a muniment of title, but to show privity between plaintiff and predecessor to establish continuity of possession, held. admissible for such purpose as against objection that defendant was not a party thereto.</p> <p>5. Adverse possession <@=>43(3) — Variance between description in petition and description in deed between plaintiff and predecessor harmless.</p> <p>Where plaintiff claimed title by adverse possession, variance between description of land in .petition and description in deed between plaintiff and predecessor was harmless, where the deed was not offered as a muniment of title, but for the purpose of proving privity between plaintiff and such predecessor to establish continuity of possession for required period.</p>

<p>1. Trial <&wkey;>350 (4) — Special Issue as to duty under contract held not erroneous as involving a conclusion of law.</p> <p>In a suit to recover the purchase money for land for vendor’s default in sinking a well, submission of a special issue as to whether it was defendant’s “duty” to sink the well prior to a given date held) not erroneous as involving a conclusion of law.</p> <p>2. Trial <&wkey;352(4)— Special Issue held not erroneous as not supported by evidence.</p> <p>In a suit to recover the purchase money for land because of vendor’s default in sinking a well, submission of a special issue as to whether plaintiff made a tender of performance held not erroneous as not being supported by evidence.'</p> <p>3. Trial <&wkey;350 (4)— Special issue as to reasonable time for performance held not erroneous as a legal conclusion.</p> <p>In a suit to recover the purchase price of land for vendor’s default in failing to sink a well before a given date, submission of a special issue as to whether defendants had performed their part of the undertaking of sinking the well before such date or within a reasonable time thereafter held not to call for a legal conclusion; question of reasonably time being an issue of fact, and not of law, under the evidence.</p> <p>4. Trial <&wkey;l94(11) — Instruction as to reasonable time for performance of contract held to invade province of jury.</p> <p>In a suit to recover the purchase price of land for vendor’s failure to sink a well before given time, it was not error to refuse to instruct what would be a reasonable time within which to perform the contract within the meaning of the law; such charge constituting an invasion of the province of the jury, and being on the weight of the evidence.</p> <p>5. Appeal and error <&wkey; 1032(3) — Assignment of error failing to show injury from erroneous instruction held insufficient.</p> <p>In a suit to recover the purchase price paid for land upon vendor’s default in failing to sink a well, an instruction not to consider offers of settlement or compromise which was erroneous as being general and indefinite is not reversible error, where the assignment of error fails to show resulting injury.</p> <p>6. Appeal and error t&wkey;l064(l) — Instruction as to burden of proving affirmative of special issues held not reversible error as too indefinite.</p> <p>An instruction that the burden of proof is on the party asserting the affirmative of any of the special issues submitted, and that, if the jury found that the party asserting the affirmative had failed to discharge his burden, to find against such party, held, not reversible error as too indefinite, no injury being shown.</p> <p>7. Evidence t&wkey;2l3(2), 271 (19) — Letter from vendors held properly excluded as self-serving and offer to compromise.</p> <p>In a suit to recover the purchase price paid for land on vendor’s default in sinking a well before a given date, a letter from vendors proposing to execute a deed to be deposited subject to a new contract held, properly excluded as being self-serving and offer to compromise.</p> <p>8. Vendor and purchaser <&wkey;34l(5) — In suit to recover price paid, purchaser held entitled to recover interest.</p> <p>In an action to recover the purchase price paid for land on vendor’s default in failing to sink a well as required by the contract, plaintiff purchaser held entitled to recover interest from the date of the payment of the money.</p>

<p>1. Mines and minerals &wkey;>55(l) — Owner may separate surface rights from minerals by reservation in deed.</p> <p>A grantor may by reserving to himself the mineral rights in land and conveying to the grantee only the surface rights effectually separate the two estates.</p> <p>2. Mines and minerals &wkey;>49 — Boring well unsuccessfully held insufficient adverse possession as to minerals.</p> <p>Where land was granted with a reservation of mineral rights and a remote grantee bored a well to a depth of about 300 feet for obtaining either water or oil, such act held not sufficient to show such adverse possession of the mineral rights as was necessary to set the statute of limitation in operation; no oil or water being discovered, and the well being subsequently abandoned.</p> <p>3. Mines and minerals <§=o49 — Reservation ot oil leases insufficient to constitute notice under statute.</p> <p>Where land was sold with a reservation of mineral rights, a subsequent registration of oil leases held insufficient to constitute notice of adverse possession, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6842.</p>

E. Whitehurst, Judge. Suit by A. E. Blankenship and. others against the Little Motor Kar Company and others, wherein, after appointment of receiver for defendant company, J. W. Payne and others intervened. Prom order denying vacation of the receivership, interveners appeal.

E. Dubois, Judge. Suit by Robert J. McCloskey and others against George Richardson and others. From an interlocutory order appointing a receiver pendente lite, defendants appeal.

<p>Appeal from District Court, Hunt County; A. P.’ Donhoney, Judge.</p> <p>Action by Riley Wright against C. E. Schaff, receiver. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Mines and minerals <@=»78(7) — In suit t.o cancel lease, petition held insufficient to permit recovery of guaranty deposit.</p> <p>In a suit to cancel oil and gas leases for failure to drill a well within the time required and to recover 25 cents an acre alleged to have been deposited to guarantee performance by the lessee, the petition stated no cause of action for the recovery of the deposit, where it contained no' description of any lands and no statement as to the number of acres on which to base a recovery for 25 cents an acre, but merely alleged that defendants deposited 25 cents an acre “on the above-described lands and on the lands of the plaintiffs, which amount aggregated $2,500.”</p> <p>2. Appeal and error <@=3672 — Failure of petition to state cause of action is fundamental error.</p> <p>In a suit to cancel oil and gas leases and recover a deposit made by the lessee to guarantee performance of the contract, the failure-of the petition to state a cause of action for the recovery of the deposit was fundamental error.</p> <p>3. Mines and minerals &wkey;>78(7) — In suit to cancel lease and recover deposit, pleading and proof held not to correspond.</p> <p>In a suit to cancel oil and gas leases and recover a deposit made by the lessee to guarantee performance by him where the- deposit was with the First State Bank of T. and it was alleged that the contract so provided and such bank was made a party but the contract provided for deposit in a bank at M., the pleadings and proof did not correspond.</p> <p>4. Mines and minerals <&wkey;73 — Oil and gas lease and contemporaneous contract held to be construed together.</p> <p>Oil and gas leases and a contract executed contemporaneously therewith between the same parties and with reference to the same subject-matter constituted one contract and must be construed together.</p> <p>5. Mines and minerals <&wkey;78(2) — Provision of oil and gas lease for extension by payment of rental held nullified by contemporaneous contract.</p> <p>Where oil and gas leases provided that, if no well was commenced within one 'year, the lease should terminate unless the lessee paid a specified rental, but a contemporaneous contract between the same parties provided that failure to begin a well within one year should terminate all rights and privileges granted the lessee and that the provisions of the contract should be superior to and control the provisions of the lease, the lessee could not get an extension of time by paying the rental specified in the lease.</p> <p>6. Mines and minerals <&wkey;78(7) — Lessors under oil and gas lease held not entitled to forfeit money without pleading and proving good title.</p> <p>Where a contract executed contemporaneously with oil and gas leases provided that the lessee should make a deposit to guarantee performance of the contract for the use and benefit of the lessors who should furnish a good and merchantable title and that in no event was any lessor to have any right to the sum deposited unless he should have a good and merchantable title to- the land leased, the lessors could not recover such deposit on the lessee’s default without pleading- and proving that they had a good and merchantable title.</p> <p>7. Specific performance <&wkey;>!02 — Suit to cancel lease and recover deposit held in nature of specific performance as to recovery of deposit.</p> <p>A suit by the lessors to cancel oil and gas leases and recover a deposit made by the lessee to guarantee performance by him was in the nature of a suit for specific performance so far as it sought judgment for the deposit as liquidated damages for the lessee’s failure to drill within one year.</p>

<p>1. Easements <&wkey;42 — Grantor held not estop-ped to claim damages for a nuisance.</p> <p>The grantor to a town of an easement for the construction of a septic tank is not estop-ped, by his refusal to permit the town to bury the contents of the tank when it was cleaned on the premises, to claim damages for the nuisance created by leaving the contents on the surface of the ground, since the grant gave no right to use the premises to bury the contents.</p> <p>2. Nuisance <@=^55 — Finding held not to show means objected to were only practicable means.</p> <p>In an action for a nuisance resulting from leaving the contents of a septic tank on the ground, a finding by the jury that the disposition of the contents by burial on the premises, to which plaintiff had objected, was the proper method of disposing of the contents, does not establish that it was the only practicable method, where the evidence justified a conclusion that the contents could have been hauled away from the premises.</p> <p>3. Nuisance <&wkey;43 — Contributory negligence no defense.</p> <p>In an action for a nuisance, contributory negligence by plaintiff in objecting to the burial of the offensive matter on his premises is no defense.</p> <p>4. Appeal and .error &wkey;>238(I) — Motion attacking findings essential to assignment attacking judgment on findings.-</p> <p>Assignments of error complaining of the entry of judgment for the damages assessed by the jury cannot be sustained, where there was no motion to set aside the findings, since, unless they are set aside, the court is bound to enter judgment in accordance with them.</p>

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Action by C. S. Harris against John Barton Payne, as Director General, and later Agent, of the Texas '& Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Callahan County; W. R. Ely, Judge.</p> <p>Suit by W. C. Adams and another against Harold W. Semans and others. Erom a judgment for plaintiffs, defendants appeal.</p>

Denton, Judge. Suit by N. J. Barnes against the Honey Grove Natatorium Company and others. From a judgment for defendants, plaintiff appeals.

<p>Appeal and error (®=999(l)— Jury’s finding not disturbed when substantial justice done.</p> <p>In a fact case where the issues were submitted to a jury and substantial justice has been obtained,, the judgment will not be disturbed.</p>

<p>1. Venue <§=7 — Petition held not to allege execution of written contract defeating plea of privilege.</p> <p>A petition which alleged that the written contract was executed by defendants and sent to plaintiffs, who objected to the form of execution and returned it for proper execution, but that thereafter the defendants refused to re-execute it, does not show the execution of a written contract which would be sufficient to defeat defendants’ plea of privilege to be sued in the county of its residence.</p> <p>2. Appeal and error @=5768 — Appellants cannot question proposition advanced by them.</p> <p>Where defendants, on appeal from an order overruling their plea of privilege, advanced a proposition as to the construction of Rev. St. art. 1830, exception 5, which was conceded by plaintiff, the defendants cannot thereafter question the soundness of the proposition.</p> <p>3. Venue <@=7 — Contract reduced to writing and' treated as in its final form held under admission to deprive defendant of plea of privilege.</p> <p>A petition, alleging that a written contract for the rental of premises was executed by defendants ánd sent to plaintiffs, who returned it for more formal execution, which defendants refused to make, but that defendants had gone into possession of the premises and retained them for four months and both parties had performed their agreements under the contract, brings the case within appellants’ proposition that if the contract had been reduced to writing, treated by the parties as being in its final form, and acted on, whether signed or not, it would be effectual to deprive the defendant of his privilege.</p>

<p>1. Partition <©=>36 — Purchasers of partitioned land held proper parties to certiorari to review probate proceedings.</p> <p>Under Rev. St. arts. 733, 734, 739, as to revision and correction of proceedings of the county court in the matter of the estate of a decedent, petitioner claiming too largo a share was partitioned to the other devisees, those to whom they sold the lands partitioned to them are properly made parties defendant in certio-rari as adversely interested.</p> <p>2. Partition <@=36 — Petition for certiorari to review probate partition proceeding held not to have misjoined another cause of action.</p> <p>The petition being only one for certiorari to revise and correct the probate orders in partition, there is no misjoinder of causes of action, though the right of petitioner under the will to land partitioned to others is asserted.</p> <p>3. Partition <@=36 — Petition for certiorari to review partition proceedings in probate held not subject to general demurrer.</p> <p>Petition for certiorari to revise and correct proceedings for partition of a decedent’s estate is not subject to general demurrer, it reciting in detail the interest of petitioner, sufficiently alleging the adverse interest of the other parties, revealing the court’s jurisdiction, and complying generally with the requirements of the statutes as to such actions.</p> <p>4. Infants <&wkey;l 11 — Judgment in action by next friend against infant’s interest held subject to attack as one obtained through fraud of next friend.</p> <p>Though an infant was a party plaintiff by next friend in a suit to partition a decedent’s estate, yet the suit being expressly against his interest, and the judgment following the petition arbitrarily and illegally taking from him part of what the will gave him and adding it to what the will gave the others, he may, on attaining majority, attack the judgment as one obtained through the active fraud or collusion of Ms next friend, whatever her motive and howev er honest her purpose.</p>

<p>Appeal from Collin County Court; R. L. Moulden, Judge.</p> <p>Suit by T. E. Ball against Ernest Henderson. From judgment for defendant, plaintiff appeals.</p>

R. Warren, Judge. Action by W. R. Parker against the Independent Order of Puritans. Judgment for plaintiff, and defendant appeals.

<p>1. Appeal and error <&wkey;773(2) — Appeal not dismissed for failure to file brief in time, where appellee not injured.</p> <p>An appeal will not be dismissed for appellant’s failure to file brief within time required by Rev. St. art. 2115, where it affirmatively appears that appellee was not injured thereby.</p> <p>2. Carriers &wkey;>277(4) — Not liable for#injurles to passenger walking to other station on failure of car to stop.</p> <p>Interurban railroad, which was negligent in not stopping its car for passenger at station in town containing a hotel, was not liable for injuries received by passenger in walking 10 miles to other town; such damages not being within the contemplation of the parties.</p> <p>3. Damages &wkey;>62(l) — Passenger for whom car did not stop contrihutorily negligent in walking to other town.</p> <p>Where passenger, on failure of interurban car to stop for him at station at small town containing a hotel, without making an effort to secure lodging, walked 10 or 12 miles to other town, he was contrihutorily negligent, precluding him from recovering damages from railroad.</p>

<p>1. Appeal and error &wkey;>282 — Motion for new trial not necessary to consideration of ruling at triai by court.</p> <p>Where the trial on issues raised by sequestration and replevin proceedings was to the court without a jury, objection to assignments of error attacking a ruling sustaining a plea to the jurisdiction on the ground that there was no motion for new trial in the' court below cannot be sustained.</p> <p>2. Courts <&wkey;!68 — County court has jurisdiction of action to recover automobile of value of $600. \</p> <p>Where plaintiff, in an action to recover possession of a Pord automobile alleged to be of the value of §600, sued out of the county court in which action was begun a writ of sequestration, and defendant replevied the automobile, which the sheriff assessed at the value of $600, the county court was not without jurisdiction under Const, art. 5, § 8, for the section applies only to suits for a trial of the right of personal property, as provided for in Rev. St. arts. 7769, 7778, showing that the proceeding is to be transferred to the district court only when the claim to the property sequestered is by a third person, while here it was claimed by defendant.</p>

Action by W. E. Hartt against the Tturia Cattle Company and others. Prom judgment for defendants, plaintiff appealed to the Court of Civil Appeals, which affirmed (210 S. W. 612), and plaintiff brings error.

Suit by A. P. Baldwin and others against R. E. Williams and others. Judgment rendered was affirmed by Court of Civil Appeals (202 S. W. 975), and R. P. Williams and others bring error.

Rotsky and others, others intervening. On appeal by plaintiff and others, the judgment was affirmed in part and in part reversed and rendered by the Court of Civil Appeals (178 S. W. 837), and defendant Rotsky brings error.

Suit by Willie Highsaw and others against Joe Head and others. Judgment in part for plaintiffs and in part for the defendants was by the Court of Civil Appeals affirmed (202 S. W. 155), and plaintiffs bring error.

<p>Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.</p> <p>C. W. Corder was convicted of violation of Tick Eradication Law, and he appeals.</p>

Error from District Court, Montague County; C. R. Pearman, Judge. • ■Suit by Dee Crenshaw against Montague County and another for injunction to restrain the opening of a road. Judgment dissolving the temporary’ writ of injunction theretofore issued, and plaintiff brings error.

<p>1. Appeal and error <&wkey;722(l) — Assignments of brief must be substantial copies of those properly in record.</p> <p>Assignments of error presented in appellant’s brief cannot be considered where they are not substantial copies of assignments of error which properly appear in the transcript.</p> <p>2. Appeal and error &wkey;>722(!) — Assignments' after court trial must be incorporated formally or by motion for a new trial.</p> <p>Where the trial is before the court, as well as where it is before the jury, the assignments of error presented in the brief must have been incorporated in the record either as formal assignments or in the motion for a new trial under Rev. St. art. 1612, and Courts of Civil Appeals Rules 23 anil 29 (142 S. W. xii).</p> <p>3. Appeal and error i&wkey;743(l)— Brief must refer to transcript or statement of facts.</p> <p>Assignments of error in appellant’s brief cannot be considered where there is no reference to the transcript or statement of facts in connection with the statements made under the propositions as required by Court of Civil Appeals Rule 31 (142 S. W. xiii), and the assignments point out no fundamental error authorizing reversal under Rule 23 (142 S. W. xii).</p>

A. Ward, Judge. Í Suit by Fox Bros, against the Pittman-Harrison Company “and others. ‘From judgment for plaintiff against named defendant, the named defendant appeals. The appellees brought suit against the Director General, operating the Missouri, Kansas & Texas Railway of Texas and against the Pittman-Harrison Company, a corporation, jointly and severally, for damages for alleged conversion of a carload of peas.

River County; Ben H. Denton, Judge. Trespass to try title by Mrs. Maggie Collins and others against T. T. Megason. From a judgment for defendant, plaintiffs appeal. This suit was one of trespass to try title, brought by appellants, husband and wife, against appellee. The land sued for was the E. Hopkins survey of 177% acres in Red River county. In their petition, filed April 28, 1919, appellants set up title in themselves by force of the statute of limitations of ten years.

S’. O’Neal, Judge. Suit by the Caddo Oil & Refining Company of Louisiana against the Texarkana Pipe Works, in which the defendant interposed a plea in reconvention. Prom a judgment for plaintiff after the court peremptorily directed a verdict for plaintiff for the amount sued for and against the plea in reconvention, defendant appeals.

<p>Appeal from District Court, Montague County;. C. R. Pearman, Judge.</p> <p>Action by Una and Dell Clark against O. D. Loving. From a Judgment for plaintiffs, defendant appeals, and plaintiffs assign cross-errors.</p>

O. Beard, Judge. Action, by E. P. Littlejohn against the National Union Fire Insurance Company, with cross-action by said Company against F. L. Martin and another. From an order transferring the cross-action to another county, said Company appeals. The suit was filed by the appellee Little-john as plaintiff against the appellant insurance company in Harrison county.

<p>Appeal from Collin County Court; R. D Moulden, Judge.</p> <p>Action by Whitehouse Bros, against S. H. Abbott & Son. From a judgment for defendants, plaintiffs appeal.</p>

- Appeal from District Oour.t, Wichita County ;' Edgar Scurry, Judge. Motion by the Riverland Company for judgment on award of arbitrators, opposed by H. H. Temple and another. From a judgment in favor of plaintiff, the defendants appeal.

Peirson, Judge. Suit by H. Seay & Co. against W. D. Moore and others. Judgment for plaintiff, and defendants appeal.

B. Muse, Judge. Suit by J. T. Birchfield against the Twin City Company and another. From judgment for plaintiff granting temporary injunction, defendants appeal.

Q. McCracken, Judge. Proceeding by Olaf Nelson under the Employer’s liability Act against the United States Fidelity & Guaranty Company for compensation for injuries accidentally suffered by plaintiff, an employe. Prom a judgment in favor of plaintiff, defendant appeals.

<p>1. Judgment c&wkey;584 — -Adjudication that contract did not exist held res adjudicata.</p> <p>Judgment for defendants in action on a contract which the defendants claimed did not exist was res adjudicata in subsequent action by plaintiffs against same defendants and other defendants who were privies to defendants in first action, based on the same cause of action.</p> <p>2. Appeal and error <&wkey;>882(l) — Requiring re-litigation of same issues on retrial held to work estoppel to assert former adjudication.</p> <p>Plaintiff by requiring defendants on retrial of action to relitigate the'issues involved in the first trial were estopped from asserting that the judgment rendered upon first trial had not been set aside by the Supreme Court.</p> <p>3. Appeal and error &wkey;>597(l) — Transcript should include findings unless omission is agreed to by both parties.</p> <p>Findings of fact should not be omitted from transcript unless both parties agree to such omission.</p> <p>4. Costs &wkey;>256(l) — Cost of copying exhibits in transcript not charged against defendants where plaintiffs did not object to exhibits.</p> <p>Where plaintiffs in error did not object to exhibits attached to the answer of defendants in error, and did not ask to have exhibits detached in the trial court, but signed agreement that exhibits should be copied in transcript, they were not entitled to have cost of copying them in the transcript charged against the defendants in error, on court affirming judgment.</p>

<p>Appeal from District Court, Hardin County; D. F. Singleton, Judge.</p> <p>Quo warranto by the State of Texas, on the relation of Gus Mobray and others, against E. M. Masterson and others. From judgment for defendants, relators appeal.</p>

Bend County; M. S. Munson, Judge. Action by J. A. Rich against the Galveston, Harrisburg & San Antonio Railway Company and others. Judgment for plaintiff, and defendants appeal and plaintiff presents a cross-assignment.

D. Guinn, Judge. Action by A. M. Jordan against Walker D. Hines, Director General of Railroads, John Barton Payne, and' the Texas & New Orleans Railroad Company. From a judgment against the United States and the two defendants first named, action having been dismissed as to the railroad company, the Director General and Payne appeal.

M. Blackman, Judge. Garnishment proceedings by M. C. Sanders against the Farmers’ State Bank of Mexia, as garnishee of C. C. Williams, judgment debtor. From a judgment quashing and dismissing the garnishment proceedings, .plaintiff appeals.

<p>I.Master and servant <@=>288'(2) — Roundhouse hostler’s assumption of risk from slippery cab floor held for jury.</p> <p>In action under Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), for injuries 'to roundhouse hostler who slipped on the water and grease on the floor of the engine cab, the question of whether he assumed the risk of working in the cab with the floor in wet and greasy condition held for the jury.</p> <p>2. Master and servant <@==>288(1) — Assumption of risk ordinarily question for jury-</p> <p>Ordinarily the question of assumed risk is one of fact for the jury, unless the facts present a situation so plain that intelligent men would not draw different conclusions.</p> <p>3. Master and servant <@=>231 (I) — Employee may assume that employer has provided safe place and appliances.</p> <p>An employee has the right to assume that employer has exercised proper care with respect to providing a safe place to work and suitable and safe appliances for the work.</p> <p>4. Master and servant <@=>107(2) — Reasonably safe place required.</p> <p>The employer is required to furnish a reasonably safe place'in which to work.</p> <p>5. Master and servant <@=>291(4) — Instruction on condition of locomotive ash pan held not objectionable.</p> <p>In action under Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), for injuries to roundhouse hostler in descending from engine cab to get under engine to close ash pan, instruction as to condition of ash pan held not to submit question of whether railroad failed to install the ash pan required by Ash Pan Act (U. S. Comp. St. § 8624), as against objection that there was no evidence of such failure, but merely to submit issue as to whether the ash pan was in proper repair.</p> <p>6. Tria! <@=>350(8) — Court should not submit issue where facts are uncontroverted.</p> <p>When acts are uncontrover-ted, or there is no issue as to such facts, the court should’so charge, and not submit it as au issue to be found by the jury.</p> <p>7. Master and servant <@=>265(4) — Locomotive ash pan presumed to comply with federa! act.</p> <p>In an action under Federal Employers’ Liability Act (U. S. Comp. St.’§§ 8657-8665), for injuries to a railroad employee, caused by railroad’s violation of Ash Pan Act (U. S. Comp. St. § 8624), it will be presumed that the ash pan placed on the locomotive complied with the requirements of the statute.</p> <p>8. Master and servant <@=>129(5) — Violation of Federal Ash Pan Aot (U. S. Comp. St. § 8624) held proximate cause of injuries to roundhouse hostler slipping on cab floor.</p> <p>Where a roundhouse hostler slipped in stepping on water and grease on floor of engine cab while descending to ground to go .under engine to close ash pan on inability to so do by use of the lever while in the cab, the railroad’s failure to keep ash pan in repair, in violation of Ash Pan Act (TJ. S. Comp. St. § 8624), was the proximate cause of the injury, notwithstanding that he would not have fallen but for the water and grease on the floor of the cab.</p> <p>9. Master and servant <@=>110 — Federal act held applicable.</p> <p>Safety Appliance Act (U. S. Comp. St. §§ 8617-8623), requiring an engine to be equipped with an ash pan which can be dumped or emptied or cleaned without the necessity of an employee going under the locomotive, held to protect an employee not only while he is actually under the locomotive adjusting the pan, but also in each and every step necessary to accomplish that purpose.</p> <p>10. Master and servant @=204,(2), 228(2) — Violation of Federal Ash Pan Act (U. S. Comp. St. § 8624) precludes defenses of assumed risk and contributory negligence.</p> <p>In an action under Eederal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), for injuries caused by the railroad’s violation of the Ash Pan Act (U. S. Comp. St. § 8624), the railroad could not defend on the plea of assumed risk or contributory negligence, in view of Eederal Employers’ Liability Act, § 4 (Comp. St. § 8660), and Employers’ Liability Act 1908, §§ 1-4 (Comp. St. §§ 8657-8660).</p> <p>11. Negligence <@=>136(25)— Proximate cause question for jury.</p> <p>The proximate cause of an injury is ordinarily a question for the jury.</p> <p>12. New trial @=>140(3) — Evidence insufficient to show that jury was influenced by suggestion that attorney was to receive one-half of recovery.</p> <p>Evidence held to justify finding that a suggestion made in jury room, during discussion of amount to be awarded, that plaintiff’s attorney was to receive as his fee one-half of the amount recovered, did not influence the amount of the verdict.</p> <p>13. New trial @=44(3) — Suggestion in jury room that attorney was to receive one-half of recovery held not ground for.</p> <p>Where it did not affirmatively appear from the evidence that a suggestion made in the jury room during deliberation as to amount of verdict, that plaintiff’s attorney was to receive one-half of the amount recovered as his fee, influenced the verdict, court’s denial of new trial on the ground of such suggestion held not an abuse of discretion, under Rev. St. art. 2021.</p> <p>14. Damages @=132(3) — $15,000 verdict for paralysis resulting from injury held not excessive.</p> <p>In action under Eederal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), $15,-000 verdict for injuries to 21 year old employee suffering from paralysis as a result of the injuries, and who had lost more than 40 pounds in weight between injury and trial, held not excessive.</p> <p>15. Damages @=185(1) — Evidence held to show paralysis caused by injuries.</p> <p>In action under Eederal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), for injuries to employee, evidence held to warrant finding that the injuries received caused paralysis.</p> <p>16. Evidence @=II — Judicial notice taken of the abnormal wages and prices paid during years 1917 to 1920.</p> <p>The Court of Civil Appeals will take notice that wages and prices during the years between 1917 and 1920 were .abnormal, and perhaps should not be looked to as furnishing a- future criterion as to earning capacity of a plaintiff suing for injuries, or for comparison as to wages received before and after.</p> <p>On Motion for Rehearing.</p> <p>17. Master and servant @=295(7) — Instruction on assumed risk held erron«ous.</p> <p>In an action under Eederal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), instruction to find for railroad if employee knew of railroad’s negligence, or by the exercise of ordinary care could have known the same while in the discharge of his duties in time, by the exercise of ordinary care on his part to have avoided injury therefrom, held erroneous, in that it assumed that employee would not be guilty of assumed risk if with knowledge of railroad’s negligence he exercised ordinary care to avoid injury.</p> <p>18. Master and servant @=217(10) — Railroad employee not relieved of assumed risk by exercising ordinary care to avoid injury from known negligence.</p> <p>Railroad employee who knew, or must have known, of railroad’s negligence, and continued in the service, could not recover under Eederal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), even though with knowledge of such negligence he exercised ordinary care to avoid the injury.</p> <p>19. Master and servant @=295(7) — Instruction on assumed risk held erroneous.</p> <p>An instruction that employee did not assume risk if, with knowledge of defendant’s negligence, he exercised ordinary care to avoid injury therefrom, would have been defective under Rev. St. art. 6645, subd. 2.</p> <p>20. Appeal and error @=750(6) — Assignment of error to refusai of charge held to cover giving of incorrect charge.</p> <p>The Court of Civil Appeals will reverse ease on ground that an instruction was erroneous, notwithstanding failure to complain thereof by assignment of error, where court refused a proper charge, and such refusal is complained of by assignment of error.</p> <p>21. Master and servant @=217(20) — Risk not assumed by roundhouse hostler unless careful person would have observed slippery cab floor and appreciated danger.</p> <p>Railroad roundhouse hostler did not assume risk of working in cab with wet and greasy floor unless the grease and water and the consequent danger were so obvious that an ordinarily careful person in his situation would have observed the grease and water and appreciated the danger.</p> <p>22. Master and servant @=288(2) — Roundhouse hostler’s assumption of risk from absence of lights held for jury.</p> <p>In an action under Eederal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) for injuries to a railroad roundhouse hostler who slipped and fell while descending frqm cab to ground, in which it was claimed that railroad was negligent in not having furnished lights, question of whether he assumed the risk from absence of lights held for the jury.</p> <p>23. Master and servant <@=286(3) — Railroad’s negligence in not lighting roundhouse premises held for jury.</p> <p>In an action under Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) for injuries to roundhouse hostler descending from engine cab to ground, the railroad’s negligence in not lighting the premises held- a question for jury.</p> <p>24. Master amt servant <3=285(5) — Negligent failure to light premises as proximate cause of injuries to roundhouse hostler held for jury.</p> <p>In an action against railroad under Federal Employers’ Liability Act (U. S. Oomp. St. §§ 8657-8665), for injuries to a roundhouse hostler who fell while descending from engine cab to ground, question of whether railroad’s failure to light the premises was a proximate cause of the injuries held for the jury.</p> <p>25. Master and servant <@=3285 (I!) — Negligence in moving engine as proximate cause of injury to roundhouse hostler held for jury.</p> <p>In an action under Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) for injuries to a roundhouse hostler who fell into turntable pit while descending from cab, whether railroad’s negligence in moving engine on turntable, over pit, wás a proximate cause of the injury, held a question for the jury.</p> <p>26. Master and servant <@=3285(7) — Cause of roundhouse hostler’s fail from engine held for jury.</p> <p>In an action under Federal Employers’ Liability Act (ü. S. Comp. St. §§ 8657-8665) for injuries to' a roundhouse hostler who fell in descending from engine cab to ground, whether he slipped on water and grease on floor of cab, held: a question for the jury.</p> <p>27. Negligence <@=>61 (I) — Concurrent cause contributing to injury efficient cause.</p> <p>If it required two agencies to produce the injury, or if both contributed thereto as concurrent forces, the presence and existence of one will not exculpate the other, because it would still be the efficient cause of the injury.</p>

R. Warren, Judge. Action by the First National Bank of Hughes Springs against Tom Sanford, and the Merchants’ & Planters’ State Bank of Winnsboro. From a judgment sustaining the plea of privilege of the defendant last named and ordering transfer of cause, plaintiff appeals. The suit was by appellant against appel-lee Sanford,, who resided in Smith county, and appellee Merchants’ & Planters’ State Bank of Winnsboro, a corporation, whose place of business was in Wood county.

Porter, Judge. Information in the nature of a quo war-ranto by the State, on the relation of the Board of School Trustees of Union Hill Independent School District, against Paul Bradshaw and others, constituting the Board of School Trustees of Covington Independent School District. Judgment for respondents, and relator appeals.

D. Craig, Judge. Proceeding by Leon County to lay out a road across the land of Mrs. M. C. Leathers. From decree of the commissioners’ court .awarding 'her insufficient damages, Mrs. Leathers appealed to the county court, which dismissed the 'cause, and she appeals.

Street, Judge. In the matter of the estate of Louis Full-has, deceased. Application by Mrs. Jennie Berlin as independent executrix for the probate of the will of the deceased. From a judgment admitting the will to probate, Mrs. Ottilia Bendig appeals.

<p>1. Homestead <&wkey;ll8(3) — Wife need not join in conveyance of land title to one-half which was held as trustee.</p> <p>Where plaintiff and his father-in-law jointly bought a parcel of land, the title being taken in the name of plaintiff, and the two families moved on the land, plaintiff’s conveyance to his father-in-law on partition cannot be attacked because his wife did not join; the homestead right attaching only to plaintiff’s undivided interest in the land.</p> <p>2. Tenancy in common <&wkey;35 — Conveyance by tenant in common, though there had been no partition, not open to attack.</p> <p>Where a widow who took an undivided one-half interest in land, title to which was in her husband at the time of his death, conveyed a portion less than her half, and it appeared that the lands conveyed acre for acre were of no greater value than the other property, the widow’s conveyance passed good title, notwithstanding .there had been no partition and children were entitled to the other undivided one-half interest.</p> <p>3. Appeal and error <S=v843(2) — Where defendant showed title by deed, assignments attacking rulings on asserted title by limitations need not be reviewed.</p> <p>In trespass to try title, where defendant showed good title by deed, the appellate court need not review plaintiff’s assignments attacking findings of the court on issue of limitations or refusal to grant new trial on the ground of newly discovered evidence on the question of defendant’s occupancy.</p>

<p>Railroads <&wkey;5i/2, New, vol. <5A Key-No. Series — Federal Director General not liable to penalties for neglect of statutory duty to light premises.</p> <p>Under Act Cong. March 21, 1918, § 10 (U., S. .Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115%j), relative to the federal control of railroads, the Federal Director General of Railroads whose predecessor in office took over the properties of a railroad in the possession and control of a receiver is not liable to penalties for failure of himself and predecessor to keep well lighted the water-closets and adjacent depot grounds maintained at several passenger stations, as required by Rev. St. arts. 6592-6594.</p>

Error from District Court, Smith County; J. R. Warren, Judge. Suit by the Aubrey Milling Company against S. Friedlander and the receivers of two certain railway companies, in .which the First Guaranty State Bank of Aubrey intervened, setting up its ownership of the cause of action by assignment, and in which Walker D. Hines, as Director General of Railroads, was substituted as defendant for both receivers.

Suit by Mrs. L. H. Clay, as widow of L. H. Clay, against the Atchison, Topeka & Santa Fé Railway Company, in which John L. Dyer, as administrator of the estate of deceased, intervened. From a judgment of the Court of Civil Appeals (201 S. W. 1072), ailirming a judgment for defendant, plaintiff brings error.

<p>I.’Sales &wkey;>4!8(4) — Buyer’s damages for seller’s failure to deliver is difference between contract price and market value if any.</p> <p>Generally, buyer’s damages, on seller’s failure to deliver, is the difference between the contract price and the market value, but if buyer cannot obtain the article in the market or at all, such measure of damages is not applicable, and resort must be had to other elements of value.</p> <p>2. Logs and Logging <©=3(15) — Buyer’s loss of profits held recoverable on seller’s failure to deliver timber.</p> <p>Where seller of timber knew at the time that the contract was entered into that buyer intended to manufacture such timber into lumber, and that other timber was not available therefor, the buyer, on seller’s failure to deliver and on inability to get other timber, could recover the .loss of profits that it would have made if the lumber had been manufactured, even though the seller did not know until after contract had been entered into that the buyer would likely suffer damages in loss of profits; such damages being general and not special damages, and being within contemplation of the parties.</p> <p>3. Sales <&wkey;4l8(8) — Seller must have had notice of likelihood of special damages being suffered to be liable therefor.</p> <p>Buyer to recover special damages on seller’s breach of contract must have had notice at the time of making the contract that such special damages would likely be suffered.</p>

Action by Jim Griffin against D. R. Graves in trespass to try title. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings error.

<p>I. Trial <&wkey;3!4(l)—Judge’s remarks to jury in refusing to receive report of disagreement held coercive.</p> <p>Action of judge called in to hear report of jury in telling jury, after it had reported disagreement, that he had been called in to receive the verdict and not to discharge the jury without a verdict having been rendered, that he would not feel warranted in discharging them until a verdict had been reached, that the judge who had presided would be greatly disappointed if the jury failed to agree, that the purpose of the trial was to secure a verdict, and that without a verdict all the labor of the court was wasted, and that he made it a rule to keep the jury together until a verdict was reached, and that it should consider the case and do its best to arrive at a verdict in order that the labors of the court might not be-wasted, iheld ground for reversal, being coercive.</p> <p>2. Trial <&wkey;299 — Taking of jurors by place of accident held ground for reversal.</p> <p>In personal injury action, action of deputy sheriff in taking the jury for a walk after it bad been sent back to reconsider ease after report of disagreement and in passing the scene of the accident heli, ground for reversal, since the taking of the jurors by the place of the accident was in effect the introduction of further testimony.</p>

Suit by the El Paso Union Passenger Depot Company against the city of El Paso, George Look, and others. Judgment for defendants was reversed and rendered by the Court of Civil Appeals (201 S. W. 714), and defendants bring error.

Supreme Judicial District. Proceedings by J. H. T. Mills against Marshall Mills and others to probate the will of Ella Mills, deceased. Judgment denying probate reversed by Court of Civil Appeals (206 5. W. 100), and judgment rendered, directing probate of the will, and contestants bring error.

Application by Marie Estelle Walton for appointment as temporary administratrix of the estate of N. A. Walton, deceased, contested by Nora Walton and another. Judgment for applicant was reversed, and judgment rendered for contestants, by the Court of Civil Appeals (203 S. W. 133), and the applicant brings error.

Suit by S. A. Pitzer against J. L. Lancaster and Pearl Wight, receivers of the Texas & Pacific Railroad, in which the defendants made L. A. Miller a party.- Judgment for plaintiff against the receivers, and for the receivers against L. A. Miller, was affirmed by the Court of Civil Appeals (211 S. W. 313), and the receivers bring error.

<p>1. Life estates <&wkey;8 — Limitations do not run against remaindermen during life tenancy.</p> <p>Limitations do not begin to run against re-mainderman until the death of the life tenant, in favor of persons not strangers to the life estate.</p> <p>2. Tenancy in comm'on &wkey;>l5(7, 8) — Possession by cotenant, when adverse.</p> <p>A cotenant not in possession must have actual knowledge of the fact that eoténant in possession is disputing his right to the property, or such eotenant’s possession and assertion of hostile claim must be" so notorious ás tó authorize the presumption that the other joint owner had knowledge thereof; but possession under deed or deeds executed by a eotenant and purporting to convey the entire property is hostile to that of the cotenant, and he is charged with knowledge of the hostile character thereof.</p> <p>3. Limitation of actions <&wkey;>l9(l) — Deed executed under forged power of attorney a “forged deed,” under limitation statute.</p> <p>A deed executed under a forged power of attorney was a forged deed, within the meaning of the five-year statute of limitations (Rev. St. art. 5674), which provides that it shall not apply to one who would deraign title through a forged deed.</p>

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Action by W. E. Preston against St. Louis, Southwestern Railway Company of Texas. Judgment for the plaintiff was affirmed by the Court of Civil Appeals (194 S. W. 1128), and defendant brings error.</p>

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Suit by the City of Fort Worth and others against Sam Rosen. From a judgment of the Court of Civil Appeals (203 S. W. 84) affirming a judgment for defendant, plaintiffs bring error.</p>

<p>Appeal from District Court, Palls County; Prentice Oltorf, Judge.</p> <p>John McCowan was convicted of assault with intent to murder, and appeals.</p>

E. Ashe, Judge. Suit by W. E. Lee against T. J. Donoghue and the Texas Company. Judgment for the defendant Texas Company, and for the plaintiff against defendant Donoghue, and defendant Donoghue appeals, and plaintiff cross-appeals from judgment for defendant Texas Company.

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Action by J. D. Pantaze against R. H. Mc-Dill and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Suit by the Bessemer Cas Engijie Company against Robert F. Alley. Judgment for plaintiff, and defendant appeals.</p>

P. Jones, Judge. Suit by H. H. Davidson against I. Mark-owitz. Judgment for plaintiff on directed verdict in the county court after appeal from a justice of the peace, and defendant appeals.

<p>I.Counties <&wkey;74(3) — Statute, fixing maximum commissions of treasurer, does not include compensation as treasurer of drainage and navigation districts.</p> <p>Rev. St. 1911, ax-ts. 3S73-3875, providing that the county treasurer shall receive commissions on moneys received and paid out to be fixed by the commissioners’ court, and that the commissions allowed shall not exceed $2,000 annually, when construed in the light of their history and in connection with the maximum fee bill (Acts 1897, Sp. Sess. pp. 9, 43, as amended in 1913 [Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 3880-3926]) and also in connection with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2608, 5988, 5960, relative to the county treasurer’s compensation as treasurer of drainage and navigation districts, apply only to commissions for handling. strictly county funds, and does not prevent additional compensation as treasurer of drainage and navigation districts.</p> <p>2. Counties <&wkey;75(4) — Commissions retained by treasurer not voluntarily paid so . as to prevent recovery.</p> <p>Commissions collected and retained by the county treasurer in his capacity as treasurer for drainage and navigation districts, if illegally retained, are not voluntarily paid by the county so as to bar their recovery.</p> <p>3. Limitation of actions &wkey;>22(8) — Retention of illegal commissions is official malfeasance, to which four-year limitation applies.</p> <p>The collection and retention by the county treasurer of commissions to which he is not entitled constitutes official malfeasance, giving rise to an action on his bond to which the foul', and not the two, years’ statute of limitations would apply.</p>

<p>1. Appeal and error <&wkey;IOII(l) — Findihgs on conflicting evidence conclusive.</p> <p>On conflicting evidence the trial court’s findings are conclusive.</p> <p>2. Principal and agent <&wkey;!47(2) — Agent’s authority must be ascertained by person dealing with him;</p> <p>One dealing with an agent is hound to ascertain the extent of his authority.</p> <p>3. Principal and agent <&wkey;99 — Implied powers only such as are necessary to effectuate express powers.</p> <p>Implied powers are such only as are necessary to carry into effect powers expressly granted.</p> <p>4. Principal and agent <&wkey;23(l) — Agent’s áec-larations no proof of authority.</p> <p>The declarations of one assuming to act as agent are not proof of his authority.</p> <p>5. Bailment <&wkey;>2l — Pledge t&wkey;>6 — Bailee has no implied authority to pledge.</p> <p>That one intrusted jewelry to another for safe-keeping does not authorize the other to pledge it, and he cannot divest the owner of ownership by pledging it, even to an innocent pledgee. .</p> <p>6. Principal and agent <&wkey;166(2) — Receipt of part of proceeds of unauthorized pledge of principal’s property without knowledge of pledge not ratification.</p> <p>Wherg a man to whom a woman intrusted jewelry for safe-keeping pledged the jewelry without her knowledge, the fact that she later received from him sums constituting part of the proceeds of the pledge, without knowledge whence such sums were derived, did not amount to a ratification of the pledge, as ratification depends on knowledge of the facts.</p>

<p>Appeal and error &wkey;>722( I) — Assignments In brief which are not substantial copies of assignments in record need not be considered.</p> <p>Assignments of error in appellant’s brief which are reconstructed from the motion for a new trial and are not substantial copies of any assignments of error contained in the record are not entitled to he considered under Rev. St. 1911, art. 1612, and Rules 23 and 29 (142 S. W. xii) for Courts of Civil Appeals.</p>

<p>1. Appeal and error <&wkey;748(l)— Court might refuse to consider assignments necessitating examination of record.</p> <p>Where the statements of the proceedings made in connection with the presentation of assignments of error are insufficient to enable the Court of Civil Appeals to, pass on the assignments without an independent examination of the record and search for some of the proceedings, the court might properly refuse to consider such assignments, but the matter is within its discretion.</p> <p>2. Action <&wkey;>50(l) — Petition against sellers of stock who agreed to drill for oil held not bad for misjoinder.</p> <p>There was no misjoinder of causes of action and of parties in suit against defendants who had sold stock in a corporation to be formed, agreeing to drill for oil on certain land and to deliver the well as drilled to a specified depth to the company; the claim of each' separate purchaser having been assigned to plaintiffs, who owned jointly all the claims arising out of the sales of stock to each of the purchasers named, including plaintiffs themselves.</p> <p>.3. Trial <&wkey;85 — Overruling of general objection to testimony admissible in part not error.</p> <p>Error cannot be assigned to the overruling of a general objection to testimony part of which was admissible.</p> <p>4. Mines and minerals t&wkey;>IOI — Evidence held admissible as tending to support claim well not drilled to depth agreed by sellers of stock in joint-stock association.</p> <p>In suit by purchasers against sellers of stock in a joint-stock association to be formed, who agreed to drill for oil to the depth of 2,000 feet, and to turn the well over to association, defendants claiming that they drilled the well to the depth agreed, testimony showing the well had been filled up soon after the time when defendants claimed to have completed it to the depth of 2,000 feet, etc., held admissible as a circumstance tending to support plaintiffs’ contention that the well' had not been in fact drilled to any such depth.</p> <p>5. Trial &wkey;91— Motion to exclude testimony after cross-examination addressed to discretion of court.</p> <p>A motion to' exclude testimony elicited on examination in chief, made after cross-examination of the witness, is addressed largely to the discretion of the trial court.</p> <p>6. New trial <&wkey;99 — Motion based on newly discovered testimony apparently cumulative and with no showing of diligence properly overruled.</p> <p>The trial court did not err in overruling the motion for new trial on the ground of newly discovered evidence, where the testimony relied on was cumulative, and there was no showing as to when the testimony was discovered, nor why it was not produced- on trial.</p> <p>7.Mines and minerals <&wkey; 101 — Evidence held to show as sole consideration for purchase of stock in joint-stock association agreement to drill oil well to certain depth, etc.</p> <p>In suit against sellers of stock in a joint-stock association to be formed who agreed to drill for oil to the depth of 2,000 feet and to turn the well over to the association, defendants claiming that they drilled the well to the depth agreed, evidence held to sustain case as made by plaintiffs’ pleading alleging that the sole consideration for their purchase of the stock was the agreement on the part of defendants to drill a well to a depth of 2,000 feet unless oil or gas should be found in paying quantities before.</p>

<p>1. Carriers <@=3228(1) — Burden of proof on shipper where specific negligence was alleged.'</p> <p>Where shipper of hogs which were injured' in transit alleged negligent delay, failure to feed and water, etc., an. instruction that, if the hogs were received in good condition and delivered in an unduly damaged condition, the burden was on the carrier to show want of negligence, was improper; the rule as to presumption of negligence arising from such fact not applying where there-are specific averments as to the negligence.</p> <p>2. Trial <@=352(4, 5) — Special issue as to injury to live stock improper as not confined to evidence and in not separating issues.</p> <p>Where a shipper of hogs contended that they were injured by negligent delay, rough handling, and failure to feed, the following special issue, “Did defendant exercise ordinary care to transport the hogs within a reasonable time, with reference to the manner of handling the hogs and with reference to feeding and watering the hogs?” was improper, being so worded as to confuse the jury because not separating the issues of delay and failure to feed and water, and also in suggesting improper handling in the absence of any evidence thereof.</p> <p>3. Carriers <@=3228(3) — Evidence that it was not customary to maintain facilities for feeding and .watering in a small station inadmissible.</p> <p>While ordinarily proof of a general custom of railroads to perform acts in a certain manner is admissible on the issue of negligence, yet, where a railroad company received a shipment of hogs and delayed forwarding them for 30 hours because of the movement of troop trains, evidence that it was not customary to supply facilities for feeding and watering animals at small stations, such as the point where they were received, is inadmissible.</p> <p>4. Appeal and error <@=l064(l)-r-Error in in-, struction as to burden of proof not harmless.</p> <p>In an action for damages based on negligent delay in transporting a shipment of hogs, where it appeared that the delay was due to the movement of troop trains, and a finding of negligence carried with it a finding that the carrier should have anticipated the demand for the movement of troop trains and supplied additional crews to transport its ordinary traffic, error in an instruction casting on the carrier the burden of proof cannot be deemed harmless; it appearing without controversy that but for the necessity of moving troop trains the delay would not have occurred.</p>

<p>1. Mines and minerals <&wkey;58 — Lease held not void because lessee not required to pay rent or drill well.</p> <p>The fact that a lessee of 160 acres of oil lands did not bind himself to pay rentals or to drill a well did not render lease void, and the cash consideration of $32 paid therefor was a valuable and sufficient consideration to support all the rights conveyed, including the unconditional-lease for two years and optional continuance for five years by paying stipulated rentals.</p> <p>2. Mines and minerals <&wkey;58 — Lease held not void for uncertainty as to length of time.</p> <p>The definite and unambiguous terms of an oil and gas lease, respecting the time of its continuance, held to refute the contention that it was void for uncertainty in that respect.</p>

<p>Appeal from District court, Eastland County ; E. A. Hill, Judge.</p> <p>Suit by W. L. Phoebus and wife against C. U. Connellee. From an order entered after trial in which the jury answered certain interrogatories, but failed to agree on others, declaring a mistrial, but granting a temporary injunction against defendant on condition of plaintiffs giving bond, plaintiffs appeal.</p>

<p>1. Appeal and error c&wkey;>93f(3) — In absence of findings, presumed that controverted issues were resolved in favor of appellees.</p> <p>Where no findings wer.e filed by the trial court, it will be presumed that all controverted fact issues were resolved in favor of the appellees.</p> <p>2.'Appeal and error 1024(2)— On conflicting evidence, order refusing to dissolve injunction upheld.</p> <p>An order overruling motion to dissolve an injunction based on conflicting evidence will not be disturbed on appeal.</p>

<p>1. Alteration of instruments <&wkey;>ll(2) — Alteration of note by stranger without owner’s consent or knowledge does not render note inadmissible in action thereon.</p> <p>In a suit to recover on a note, where plaintiff bank pleaded that the date of the note had been changed without its knowledge, and that it repudiated the change as soon as it had notice thereof, and introduced all the officers of the bank to testify that they had not altered the note nor knew when, why, or by whom it was altered, it was not error to admit the note in evidence as showing the original contract.</p> <p>2. Alteration of instruments &wkey;>l I (2) — Alteration by stranger does not change status of parties.</p> <p>A change or alteration of a note by strang-ger thereto does not change the status of the parties as evidenced by the original instrument,- and cannot relieve the maker from his obligation thereunder.</p> <p>3. Chattel mortgages <@cw47 — Description enabling property to be definitely identified by mortgage itself is sufficient.</p> <p>Where a chattel mortgage itself gives means by which the property can be definitely identified, although the description is not as accurate as it should be, the instrument is not void for indefiniteness of description.</p>

<p>1. Contracts @=>198(6), 281 — -Contract to drill 30 “barrel” water well meant barrels of 31 !/2 gallons; right to “test” did not give owner absolute right to determine sufficiency.</p> <p>In view of Acts 36th Leg. (1919) e. 130, where plaintiff contracted to bore for defendant a water well yielding sufficient water to fill 30 barrels each day, the word “barrel” as used in the contract meant a barrel of 31% gallons, the standard United States measure except as to barrels of petroleum, and the provisions of the contract giving defendant right to test the capacity of the well for not exceeding 90 days did not give her absolute power to determine' unappealably whether there was insufficient water.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Barrel; Test.]</p> <p>2. Customs and usages @=>5 — Merely local custom not to be read into contract.</p> <p>That barrels of a possible capacity of 50 gallons each were being used in the neighborhood where the parties to a well-boring contract lived did not prove that either of the parties had such receptacles in contemplation when they contracted concerning the number of barrels of water which should be the daily flow from the well.</p> <p>3. Contracts @=>281 — Tests of well to be binding must have been reasonable and conducted with due care.</p> <p>Defendant’s tests of the capacity of a water well drilled for her by plaintiff in order to, be binding on plaintiff must have been reasonable and conducted with due care.</p> <p>4. Contracts @=>322(3)— Evidence sufficient to justify rejection of test of capacity of water well.</p> <p>In suit to recover for drilling a 30 barrel a day water well, evidence Jieldi sufficient to justify the jury in rejecting the test of the well made by defendants to determine whether the well came up to capacity, they claiming that the test showed it did not do so.</p> <p>\</p>

<p>Appeal from District Court, Grimes County; J. A. Platt, Judge.</p> <p>Suit by Mrs. Anna L. Stewart against P. J. Randolph and others. Prom judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Montague County Court; W. T. Russell, Judge. . ,</p> <p>Action by the King-Collie Company against J. M. McKay. From an order of the county court dismissing defendant’s appeal from the ruling of the Justice of the peace denying his plea of privilege, defendant appeals.</p>

<p>Appeal from Haskell County Court; Jas. P. Eannard, Judge.</p> <p>Action by M. S. Shook against the Pit1> man & Harrison Company. Judgment for plaintiff, and defendant</p>

<p>1. Appeal and error &wkey;>770(l) — Where no brief for appellee, appellant’s brief regarded as correct presentation of case.</p> <p>Where appellant alone filed a brief, the court of appeals would, under Rules 40 and 41 of that court (142 S. W. xiv), regard appellant’s brief as a proper presentation of the case without examining the record.</p> <p>2. Eminent domain <&wkey;l3 — Exercised only for a “public use.”</p> <p>The right of eminent domain under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6876, implies that the purpose for which it may be exercised must be a public one, and not a mere private one; a “public use” being one which concerns the whole community in which it exists, as contradistinguished from a particular individual or number of individuals.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Use.]</p> <p>3. Easements &wkey;>16 — Private roads <&wkey;2(l)— No necessity for road; partition of tract carries with it right to use existing roads therein.</p> <p>Where the owner of a tract subdivided it between his children, and prior to the subdivision there were public roads bounding it giving convenient access to the church, school, gin, mill, and store used by the occupants, and private ways over the land intersecting the public roads, the parties living on any subdivision who would otherwise be cut off by other subdivisions had the right to demand access to and the use of the prior existing private roads over other subdivisions, under the rule that partition of real estate among heirs carries with it by implication the same right of way from one part to and over the other as had been plainly and obviously enjoyed by the common ancestor, and they could not sit by and permit themselves to be cut off by their kindred and then demand of the owner of an adjoining tract that he give them an outlet over his land, so that they had no legal right under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6876, to have opened such a new road over such adjoining tract; it not being a road of necessity.</p> <p>4.Private roads &wkey;>2(I)— Opening of unnecessary road may he enjoined.</p> <p>Where commissioners , had no legal right to order a road opened across plaintiff’s land under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 6876, he had a right to enjoin their action as being without jurisdiction by suit in district court; the remedy by appeal to the county court under article 6882 being inadequate.</p>

<p>1. Mines and minerals <§=78(7) — Abandonment of oil lease by failure to drill held for jury.</p> <p>Whether lessee abandoned oil lease by failure to drill wells held, under the evidence, question for jury.</p> <p>2. Mines and minerals <§=>58 — Option in lease either to' drill or make annual payment b supported by' consideration.</p> <p>Lessee’s payment of $1,000 to lessor on execution of oil lease held sufficient consideration for option in lease to either drill or pay lessor $1,000 annually in lieu thereof.</p> <p>3. Mines and minerals <@=>78(2) — Lessee cannot, by paying rent, prolong lease executed for nominal cash consideration, where real consideration was development.</p> <p>A lessee cannot prolong the life of an oil lease by mere payment of rental, where the oash consideration is merely nominal, and where it is evident by terms of lease as a whole that the real consideration was development for oil.</p> <p>4. Mines and minerals <§=>78(2) — Lease may be continued in force by either drilling well or optional payments, where it so provides.</p> <p>If a lease provides that it shall be null and void, and all rights under it shall determine, if a well be not drilled within a time stated, or unless the lessee pay á stipulated rental for delay in drilling well, or until one be completed such lessee may continue lease in force during term ;n which it was given hy payment of rental.</p> <p>5. Mines and minerals <S=»58 — Ordinance regulating drilling of wells did not invalidate lease.</p> <p>City ordinance, which -merely regulated drilling of oil wells and did not absolutely prohibit drilling for oil, buti contemplated that drilling might be in such manner or under such conditions as to receive approval of city’s building inspector, did not invalidate oil lease, though building inspector testified that he could not grant permission to drill well on land covered by such lease, since it cannot be said as a matter of law that the ordinance will continue for full term of oil lease, or that such building inspector will continue in office, or that his successor will view condition with like effect.</p> <p>On Motion for Rehearing.</p> <p>6. Guardian and ward <©=44 — Guardian’s sur-faca lease without order of court held valid.</p> <p>Guardian, having executed leases of mineral interests of minors pursuant to order of court under Vernon’s Sayles’ Civ. St. arts. 4152a and 4152b could make a valid lease of the surface without an order from the probate court therefor, under articles 4134 and 4136, where such surface lease related to improved property.</p>

<p>1. Mines and minerals @=>77 — Lessee’s rights may be lost by abandonment, which is a question of intention, established by circumstantial evidence.</p> <p>Rights of lessee under an oil and gas lease may be lost by abandonment, and abandonment .is a question of intention, which may be established by circumstantial evidence, such as-the removal of machinery, quitting the premises, and other circumstances showing an intention to relinquish all rights and interests in the leased premises.</p> <p>2. Mines and minerals @=>78(1) — Lessee held under no obligation to commence another oil well 60 days after “completion” of first.</p> <p>Where an oil and gas lease was made in 'consideration of lessee within 270 days completing a well within one mile of lessor’s tract, and provided for commencement of a well on lessor’s tract within 60 days after completion of the first well, which was to be drilled to a depth of 2,000 feet, lessee agreeing to pay rent for delay in drilling the well on lessor’s premises, weld, that lessee,'having drilled thsi/ first well' te-ffhe requisite depth before expira-r tion of the time for its completion, was under > no obligation to begin another within 60 days ' after such completion; a completed well mean- / ing finished or sunk to the depth necessary to' find oil, or to such a depth as, in the absence , of oil, precludes.a probability of finding it at ' a further depth. ^ 'i</p> <p>3. Mines and minerals @=>77 — Evidence insufficient to show abandonment by lessee.</p> <p>In a suit by a landowner to cancel an oil and gas lease on the ground of abandonment, evidence helé insufficient to show abandonment by lessee.</p> <p>4. Mines and minerals @=>77 — Burden of showing abandonment in suit to cancel lease held on lessor.</p> <p>In a lessor’s suit to cancel an oil and gas lease if n the ground of abandonment, the burden of showing abandonment was on plaintiff.</p> <p>5. Mines and minerals @=>77 — To establish abandonment of lease, both intention and act must be shown.</p> <p>( To establish abandonment of lease on the part — of the lessee, \both an intention and the act must be shown. \</p> <p>6. Mines and minerals &wkey;>77 — Cessation of work and nonuser admissible to show abandonment of lease.</p> <p>In a suit to cancel an oil and gas lease on the ground of abandonment by the lessee, cessation of work and nonuser is admissible.</p> <p>7. Appeal and error <&wkey;>!00l(l) — Verdict and judgment of abandonment of gas lease subject to review by appellate court.</p> <p>While, in a suit to cancel an oil and gas lease on the ground of abandonment, abandonment is a question for the jury, yet in its determination a verdict and judgment is subject to review by the appellate court, and the judgment may be reversed for insufficiency of evidence.</p>

Suit by W. T. Roberts and wife against E. W. Hall and others to cancel an oil and gas lease. Judgment for plaintiffs, and defendants appeal.

R. Pearman, Judge. Suit by W. D. Summerour and others against J. H. Burnett and others. Judgment for plaintiffs, and the defendants J. H. Burnett and North Texas Consolidated Oil & Gas Company appeal.

P. Jones, v Judge. Suit by F. L. Emanuel against O. S. Bing-ham and others. From an order overruling a plea of privilege, the named defendant appeals.

<p>Appeal from District Court, Stephens County; Harry Tom King, Judge.</p> <p>Suit by F. A. Dean against the Imperial Oil & Gas Company, in which Walter B. Varnes intervened. Judgment for plaintiff, and the intervener appeals.</p>

<p>1. Estoppel <§=»38 — After-acquired title passes under warranty deed.</p> <p>Title acquired by a vendor after he has conVeyed a defective title, but with a covenant of warranty, passes, eo instanti, to his prior vendee upon theory of estoppel, which applies not only to the vendor, but to his privies in estate.</p> <p>2. Estoppel <&wkey;39 — After-acquired title passes to grantee on theory of estoppel wherever the conveyance shows claim of ownership.</p> <p>Though a conveyance contained no warranty of title, yet, where its terms implied a claim of ownership of the fee-simple title by the grantor, the rule of estoppel whereby an after-acquired title will pass, eo instanti, to a prior grantee applies; the estoppel depending, not on a covenant of warranty, but on good faith and fair dealing.</p> <p>3. Landlord and tenant <&wkey; 130(I) — Covenant of quiet enjoyment implied.</p> <p>Unless inconsistent with its terms, the covenant of quiet enjoyment and that the lessor has the right to lease for the term expressed is always implied in a lease; the covenant being ordinarily implied by the words lease, agreement, to let, grant, and demise.</p> <p>4. Mines and minerals &wkey;>73 — Covenant of quiet enjoyment implied in oil lease.</p> <p>The covenant of quiet enjoyment which is implied in ease of an ordinary lease should be implied with respect to an oil and gas lease.</p> <p>5. Estoppel &wkey;>37 — After-acquired title of mortgagor passes to mortgagee.</p> <p>The rule of estoppel whereby after-acquired title of a vendor will pass to a prior vendee, etc., applies to a title acquired by mortgagor after execution of the incumbrance and inures to the benefit of prior mortgagee.</p> <p>6. Estoppel &wkey;>37 — After-acquired title of oil lessor held to pass to lessee.</p> <p>Where plaintiffs’ mother executed an oil and gas lease on a parcel of land in which plaintiffs owned undivided interests, the instrument using the terms “let” and “lease” and giving the lessee full and exclusive authority to enter on the premises, and plaintiffs thereafter conveyed their interest to their mother, such after-acquired title on principles of es-toppel passed to the oil and gas lessee.</p> <p>7. Specific performance <&wkey;>57 — Option contract to purchase or lease may be enforced.</p> <p>An option contract giving the right to purchase land or to acquire á lease thereon may be specifically enforced if the same is supported by valuable consideration.</p> <p>8. Landlord and tenant &wkey;>20 — “Lease'’ defined.</p> <p>Independently of the idea of contract, a “lease,” which is more than a mere license to .occupy land, possesses the property of passing an interest and .partakes of the nature of an estate (citing Words & Phrases, Second Series, Lease).</p> <p>9. Estoppel &wkey;>37 — After-acquired title held to pass though instrument be deemed a mere option and not formal lease.</p> <p>As a lease is a valuable property right and an option contract to acquire it can be specifically enforced, title acquired by a landowner after the execution of a so-called oil and gas lease will pass to the lessee on principles of estoppel, though the instrument be construed as a mere contract for an option to acquire a lease by complying at the lessee’s election with the .stipulations therein.</p> <p>10. Estoppel &wkey;>51 — Defense of passage of after-acquired title available under plea of not guilty.</p> <p>The defense that after-acquired title of an oil and gas lessor passed to the lessee by es-toppel-is available by virtue of Rev. St. art. 7740, under plea of not guilty.</p> <p>11. Mines and minerals <&wkey;73 — Confirmation of lease held to carry after-acquired title.</p> <p>Where a mother, who gave an oil and gas lease on which her son had an undivided interest, executed a confirmation of the lease after the son’s conveyance of his interest to her, such confirmation being executed before execution of reconveyance to the son, the first deed of reconveyance being destroyed without delivery, the confirmation of the lease passed title to the son’s undivided interest.</p>

<p>Error to Court of Civil Appeals of Eighth Supreme Judicial District.</p> <p>Action by the Guaranty Trust & Banking Company and others against Adelle Miller and others, in which Winchester Cooley intervened. From a judgment of the Court of Civil Appeals (207 S. W. 642), which reformed and affirmed a judgment for plaintiff in favor of the intervener, he brings error.</p>

<p>Error to Court of Civil Appeals of Eighth Supreme Judicial District.</p> <p>Suit by P. L. Estes against the Kansas City, Mexico & Orient Railway Company of Texas, resulting in judgment for plaintiff, which was affirmed by the Court of Civil Appeals (203 S. W. 1155), and defendant brings error.</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>Action between B. L. McMurtry and E. Y. Brown. There was a judgment for the latter, and the former brings error.</p>

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Action by Clara J. Harlan against the Houston Ice & Brewing Company. Prom a judgment of the Court of Civil Appeals (212 S. W. 779) reversing a judgment for plaintiff, defendant brings error.</p>

<p>Appeal from District Court, Harris County; Ewing Boyd, Judge.</p> <p>Suit by Allen Paul against H. Prince. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Landlord and tenant <§=»23l (3) — Testimony as to reasonable rental value held admissible.</p> <p>In landlord’s action for rent, in which he claimed that the tenant was holding over after expiration of other term, and that no rent had been agreed upon, refusal to permit landlord to testify as to the reasonable rental value held error.</p> <p>2. Landlord and tenant &wkey;>200(l) — Reasonable rental value impliedly due where there is no agreement as rental.</p> <p>Where premises are rented without a stipulated sum being agreed upon as rental, it is implied that the tenant will pay the landlord the reasonable rental value for the use of the premises.</p> <p>3. Appeal and error <&wkey;1056(4) — Exclusion of evidence held cured by verdict.</p> <p>In landlord’s action for rent, refusal to permit landlord to testify as to reasonable rental value held cured by verdict by which the jury found that amount of rental had been agreed upon.</p> <p>4. Appeal and error &wkey;882(8) — Appellant cannot complain of appellee’s testimony as to facts shown by own testimony.</p> <p>Appellant having produced evidence as to certain facts cannot complain of the admission of appellee’s testimony as to such facts.</p> <p>5. Sequestration &wkey;21 — Attorney’s fees not recoverable on quashing of writ.</p> <p>On quashing of writ of sequestration, the defendant cannot recover attorney’s fees as damages.</p> <p>6. Sequestration <&wkey;2l — Value of time lost in attending court not recoverable on quashing of writ.</p> <p>The value of defendant’s time lost in attending court on the trial of a suit against him cannot be recovered, as damages on quashing of writ of sequestration.</p> <p>7. Sequestration &wkey;2l— No exemplary damages on quashing of writ where actual damages are not recoverable.</p> <p>Where no actual damages are recoverable by defendant on quashing of writ of sequestration, exemplary damages cannot be awarded.</p>

<p>1. Husband and wife <i&wkey;273(IO) — Purehaser of community property from surviving spouse not charged with duty to see. price applied to community debts.</p> <p>A surviving spouse is authorized by law to sell community property for the payment of debts, and the purchaser of such property so sold is not charged with the duty to see the purchase money is applied to the payment of the community debts.</p> <p>2. Husband and wife &wkey;>273(9) — Fact husband had changed form of community debt and payee did not change character.</p> <p>The fact that a surviving husband had changed the form of a community debt and the payee prior to his sale of community property to pay debts did not make the debt any the less a community debt.</p> <p>3. Husband and wife <&wkey;276(6) — Community administrator authorized to sell property, though there were no debts.</p> <p>A surviving husband, having qualified as community administrator, had authority to sell community property without the existence of debts, and his failure to sign deed to the purchaser as community administrator would not affect its validity.</p> <p>4. Husband and wife <&wkey;273( 10) — Purehaser from surviving husband obligated to prove only community debts, status of community property, and fact grantor was survivor.</p> <p>In trespass to try title by heirs of a deceased wife against the purchaser from the surviving husband who sold to pay community debts, defendant purchaser was required only to show the existence of community debts to justify the sale to him by the surviving husband, together with the fact of the land being community property and his grantor the survivor of the community.</p> <p>5. Evidence <@=^183(15) — Copy of deed properly admitted without affidavit as to loss of or inability to produce original.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7749, in trespass to try title by heirs of a deceased wife against the purchaser from the surviving husband, who sold to pay community debts, certified copy of deed from the surviving husband to defendant purchaser held properly admitted in evidence, though there was no affidavit made to show loss of or inability to produce the original.</p> <p>6. Appeal and error <&wkey;!050(l) — Admission of copy of deed without affidavit of loss harmless where fact otherwise testified to.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7749, in trespass to try title by heirs of a deceased wife against the purehaser from the surviving husband, who sold to pay community debts, any error in admitting in evidence without affidavit made to show loss of or inability to produce the original certified copy of deed from the surviving husband to defendant purchaser held harmless to plaintiff heirs; the sur-, viving husband having testified prior to the offer in evidence that he had so deeded the land to the purchaser.</p>

<p>Appeal from District Court, Palo Pinto County; J. B. Kuth, Judge.</p> <p>Suit by J- M. Wallace and others against T. M. Wells and others. Prom judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Harris County; Ewing Boyd, Judge.</p> <p>Proceeding by E. 0. Bonham and others against E. E. Fuchs and others. From a judgment dismissing the suit, plaintiffs appeal.</p>

<p>Appeal from District Court, Hunt County; R. R. Neyland, Special Judge.</p> <p>Suit by W. L. Cherry against L. M. Bowen. Judgment for the defendant, and plaintiff appeals.</p>

<p>Appeal from Jones County Court; J. F. Lindsey, Judge.</p> <p>Action between C. E, Moncrief and Dallas Southard. From a judgment therein, the former appeals.</p>