Volume 229 — South Western Reporter

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Suit by John M. Tipps against Clem Smith and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (191 S. W. 392), and defendants bring error.</p>

Suit by Thomas O’Conor and others against Dario Sanchez and others in trespass to try title, in which other parties intervened. -Judgment for defendants against plaintiffs and interveners, and the latter appealed to the Court of Civil Appeals, which affirmed the judgment (202 S. W. 1005), and Thomas O’Corior and others bring error.

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Suit by the Southern Trading Company of Texas against the Merchants’ & Manufacturers’ Lloyd’s Insurance Exchange and others. From a judgment of the Court of Civil Appeals (205 S. W. 352), affirming a decree for plaintiff, defendants bring error.</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>Action by A. M. James and another against O. R. Slavens. Judgment for plaintiffs affirmed by the Court of Civil Appeals (211 S. W. 842), and defendant brings error.</p>

<p>1. Mechanics’ liens @=313 — No materialman’s or laborer’s lien attaches to public buildings.</p> <p>No materialman’s or laborer’s lien can attach to public buildings, as a courthouse, erected by a county.</p> <p>2. Counties <&wkey; 123—Materialmen held not entitled to rely on subsequent statute for relief against surety.</p> <p>Acts 33d Leg. (1913) c. 99 (Vernon's Sayles’ Ann. Civ. St. 1914, arts. 6394f-6394j), requiring counties, etc., to take bonds for the protection of materialmen and laborers, having-been enacted after the execution of a bond by a county contractor, cannot be relied on for the purpose of affording relief to unpaid ma.-teriahnen against the surety on the contractor’s bond.</p> <p>3. Counties 123 — County may obligate contractors to secure claims of materialmen and laborers.</p> <p>Independent of any statute, a municipality has implied authority to bind contractors to pay the claims of laborers and materialmen, and hence, though public buildings, as a county courthouse, are not subject to materialmen’s liens, the county may by contract, regardless of any statute, obligate the contractor to give bond to secure materialmen and laborers, for such agreements are justifiable, just as lien statutes, on the theory that they protect public interest by securing responsible dealers and better materials.</p> <p>4. Counties <&wkey; 123 — Materialmen held entitled to recover on contractor’s bond.</p> <p>Where a surety bond given by contract to secure performance of an agreement to build a courthouse for a county was conditioned on faithful performance of the contract by the principal, on payment of all claims for labor and material used, and on indemnity to the county, the bond should be construed not only as for the benefit of the county, but as securing the claims of materialmen and giving them a right of action thereon against the surety; such persons not being otherwise secured.</p>

<p>1. Judgment <&wkey;779(2)— Holder of unrecorded deed has. burden of showing creditor’s knowledge when abstract was recorded.</p> <p>The holder of an unrecorded deed to land sold under execution, when sued in trespass to try title, had the burden of showing that the judgment creditor had notice of the deed at the time the abstract of his judgment was recorded.</p> <p>2. Attorney and client &wkey;M04 — Attorney’s knowledge, acquired prior to employment, not imputed to client.</p> <p>Knowledge acquired by an attorney prior to his employment by a client could not be imputed to the client.</p> <p>3. Attorney and client &wkey;>l76 — Contract held to amount to equitable assignment of interest in cause of action and judgment.</p> <p>A contract, employing an attorney to bring suit on a promissory note for the attorney’s fees provided for in the note, the client to receive the full amount of principal and interest before the attorney should receive any of the proceeds as fees, amounted to an equitable assignment of an interest in the cause of action and judgment to the attorney.</p> <p>4. Judgment <&wkey;779(2)— Knowledge of attorney having interest in judgment of unrecorded deed to land sold held not to affect client’s interest.</p> <p>Though a contract employing an attorney to sue on notes for the attorney’s fees stipulated therein amounted to an, equitable assignment of an interest in the judgment to the attorney, such interest was severable from that of the client, and the client’s interest was not affected by the attorney’s previously and independently acquired knowledge of an unrecorded deed to land sold in satisfaction of the judgment.</p> <p>5. Judgment <&wkey;850 — One as to whose interest lien was invalid held to acquire lien by purchase of other interest.</p> <p>Where the lien of a judgment was valid to the extent of the balance owned by the judgment creditor, though the equitable assignee of the other interest had knowledge of an unrecorded deed, by his purchase of the judgment, such assignee acquired such balance and the lien as it existed in the hands of the judgment creditor.</p> <p>6. Execution &wkey;s99 — Alias execution not invalid because for full amount of judgment, though only valid lien as to part.</p> <p>Where a judgment was a valid lien to the extent of the portion not assigned by the judgment creditor, an alias execution for the sale of land was not invalid because for the full amount of the judgment.</p> <p>7. Contracts <&wkey;l30 — Agreement chilling sale on foreclosure of lien held fraudulent.</p> <p>On foreclosure of a vendor’s lien, an agreement by the vendor’s attorney thdt if one jointly liable on the judgment would refrain from bidding the vendor would release him from further liability was a fraud in law, as preventing or chilling the bidding.</p> <p>8. Vendor and purchaser &wkey;>287, 291 — Foreclosure sale and sale for deficiency valid until set aside for chilling of bidding.</p> <p>A sale on foreclosure of a vendor’s lien was not absolutely void, but merely voidable, because of an agreement chilling the bidding, and was subject to recognition by the parties as valid, and, so long as it so stood, a sale of other land under an alias execution for a deficiency was valid as between the parties, and could not be attacked collaterally.</p>

<p>Husband and wife &wkey;>304 — Husband held not guilty of wife abandonment.</p> <p>After a. husband found that by reason of the high cost of living his wages in the city were not sufficient to support him and his wife, and he believed that by going to the country and renting a farm he would better his position, he cannot be held criminally liable for ■ wife abandonment, under Vernon’s Ann. Pen. Code 1916, art. 640a, where he offered to take his wife with him, and she declined to go, claiming that her health demanded that she remain in the city with her mother.</p>

<p>Appeal from District Court, Hunt County; R. L. Porter, Special Judge.</p> <p>Jim Ross was convicted of crime, and appeals.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>L. W. Gumpert was convicted of forgery, and he appeals.</p>

O. McKinsey, Judge. Contest by Mrs. Emma Irby of a will, of which Mrs. Ella Briley was proponent; Lee Walker intervening, and praying for probate of the will in its entirety. From a judgment sustaining the contest in part, said Walker appeals.

<p>Error from District Court, Nacogdoches County; D. D. Guinn, Judge.</p> <p>Suit byR. H. Yarborough against the Camden Fire Insurance Association.</p>

D. Love, Judge. Suit by J. Gottlieb against James W. Ains-worth and others. From an order sustaining plea of privilege and changing venue, plaintiff appeals.

<p>Divorce <&wkey;>9l — Plaintiff’s pleading must show that plaintiff was bona fide “inhabitant” of state for 12 months, and mere residence for that length of time is insufficient.</p> <p>Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4632, which changed Acts 13th Leg. (1873) e. 74, and provides that no suit for divorce shall be maintained unless the petitioner shall at the time of exhibiting his or her petition.be an actual bona fide inhabitant of the state for a period of 12 months, and shall have resided in the county where suit is filed 6 months next preceding the filing of the suit, the term “inhabitant” carries with it the idea of a fixed and permanent residence, as distinguished from a temporary residence, to give the court jurisdiction over the divorce action; hence a petition, merely alleging that plaintiff was an actual bona fide inhabitant of the state and had resided in the county where suit was filed for more than 12 months next preceding the filing, is open to demurrer.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Inhabit-ancy. — Inhabitant.]</p>

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

<p>Appeal from District Court, Hunt County.</p> <p>Action by S. B. Brooks and another against C. M. Dollins. Erom an adverse judgment, defendant appeals.</p>

<p>j. Limitation of actions i&wkey;>l67(|) — Expiration of period of limitations against an account extinguished right to recover deposit by creditor to cover excess payment.</p> <p>Where plaintiff, the manager of a corporation, on leaving its employment, was paid an amount supposed to.be the balance due him on the account between him and the corporation, and, on the corporation auditor’s later claiming that there had been a mistake in accounts and an overpayment of $1,041, plaintiff deposited such amount in a bank to protect the company, such deposit was made in contemplation of a speedy statement as to' the account, and, when the company failed to render a statement or make claim until after the account had become barred by limitations, the company’s right to the deposit was also barred.</p> <p>2. Trusts &wkey;34(2), 95 — Deposit by employee of amount overpaid by employer held not to create trust.</p> <p>Where employer claimed to have paid employee, 1 on termination of employment, an amount in excess of that due, and made an agreement with employee pursuant to which employee deposited such amount in a bank in his own name as trustee, upon employer’s agreement to make a prompt statement as to employee’s account with employer, there was no trust created between employer and employee either expressly, constructively, or by implication of law.</p>

<p>1. Pledges <&wkey;55 — Petition in action to recover moneys advanced on assignment of life insurance policy held sufficient.</p> <p>In an action to recover mon.eys advanced under the provisions of an assignment of an interest in a life insurance policy, a petition setting out the instrument, and alleging its execution, and that its purpose was to secure the repayment of sums advanced, and alleging the total amount of indebtedness, was sufficient.</p> <p>2. Pleading ©==48 — Petition sufficient when apprising opposite party and court of facts relied on.</p> <p>The purpose of a petition is satisfied if it apprises the court and the opposite party of the facts on which plaintiff intends to rely as constituting Ms cause of action.</p> <p>3. Pleading &wkey;>I l — Petition should not allege evidence but only facts.</p> <p>A petition need not and should not state the evidence relied on as constituting the cause of action, but should only state the facts themselves.</p> <p>4. Insurance <&wkey;>222 — In suit to establish interest under assignment of policy as security, evidence showing indebtedness proper.</p> <p>In a suit to establish and recover an interest in an insurance policy assigned to secure advances, not exceeding a specified amount, a note and evidence relating thereto held admissible as indicating the extent of the interest under the assignment.</p>

Pierson, Judge. Action by J. H. Monroe against the Texas Midland Railroad. Ffom a judgment for plaintiff, defendant appeals.

<p>,1. Railroads &wkey;>484(3) — Origin of, fire held for jury.</p> <p>In action for burning barn from sparks from a locomotive, where plaintiff’s witnesses testified to seeing a freight train pass shortly before fire was discovered, defendant’s train dispatcher’s records showing that no train passed at or near the time held not conclusive; the issue being for the jury.</p> <p>2. Railroads <&wkey;482(2) — Evidence held to show fire originated from locomotive sparks.</p> <p>In action for burning a barn, evidence that a high wind was blowing toward the barn from defendant’s track while the engine of a passing train sent sparks high in the air, that the barn had been locked a short time before the fire, and that the fire could not have originated from another source, held to support the conclusion that the fire originated from sparks emitted from the engine, though the barn, was 130 feet from the track.</p>

Denton, Judge. On appellants’ motion for a rehearing. Order previously entered granting appellees’ motion for rehearing set aside, and order overruling it entered; judgment of the Court of Civil Appeals first rendered, reversing and remanding the cause for new trial on all issues made by the pleadings and testimony, directed to stand as final.

<p>1. Brokers <&wkey;49(l) — Payment of compensation to broker held to depend on performance of particular service mentioned in contract.</p> <p>Under a contract whereby a broker agreed to get a contract with a third person to drill an oil well 700 feet, etc., held-, that payment of compensation was expressly or by necessary implication made to depend on performing the service mentioned; that is, secui-ing a particular kind of contract.</p> <p>2. Brokers <&wkey;57(2) — Sale by owner on more liberal terms to buyer produced by broker does not entitle broker to commission where his efforts had come to naught.</p> <p>If a sale is made by the owner on more liberal terms to a buyer produced by the broker, the broker is not entitled to recover where the sale was 'not made by the owner until the broker’s efforts, after fair opportunity and without fault of the owner, had come to naught.</p>

<p>1. Contracts <&wkey;346(l) — Party must recover upon contract pleáded.</p> <p>It is elemental that one suing upon a contract must recover upon the contract alleged, and, if he proves a contract essentially different, the variance is fatal.</p> <p>2. Brokers <&wkey;82(4) — Proof that property was to be sold on terms different from that alleged, fatal variance.</p> <p>Where brokers alleged that they were employed to procure a purchaser for real property for $6,000, $2,000 in cash, the balance on time, and the jury found that the property was listed at $6,000, $3,000 in cash, and the balance on time, the variance between the pleading and proof was fatal, for the terms on which the property was to be sold were a material part of the contract.</p> <p>3. Contracts <&wkey;346(IO) — Variance as to description fatal only if tending to mislead.</p> <p>Where the variance between pleading and proof of a contract amounted merely to a mis-description, it is fatal only if the misdescription tends to mislead'and surprise the adverse party.</p> <p>4. Pleading <&wkey;430(2) — Variance amounting to misdescription must be objected to or is waived.</p> <p>Where the variance between pleading and proof of a contract amounted merely to a mis-description, the failure to object to the introduction of evidence will preclude objection on the ground of variance to the charge of the court or to the judgment.</p> <p>5. Appeal and error <&wkey;719(4) — Variance fundamental error reviewable without assignment.</p> <p>A variance between the pleading and proof of the terms of a contract for the sale of realty by brokers is fundamental error, and though the assignment complaining thereof was not properly incorporated in the record, it will be considered.</p>

<p>1. Appeal and error <&wkey;l054(1) — In action tried to court, admission of evidence, if erroneous, harmless.</p> <p>In an action tried to court without a jury, the admission of irrelevant and immaterial evidence not shown to have been harmful is no ground for reversal.</p> <p>2. Trial &wkey;>377(2) — The admission of evidence after partial closing of case discretionary.</p> <p>The admission of evidence after the case had been partially closed rests largely in the discretion of the trial court.</p> <p>3. Bills and notes <&wkey;54 — Payee cannot avoid provision of note on theory it did not sign same.</p> <p>Where a note contained a stipulation that under certain contingencies it should be surrendered to the maker without payment, the payee cannot avoid the provision on the theory that it did not sign the same.</p> <p>4. Compromise and settlement &wkey;>6( I) — Agreement that note should be surrendered without payment on contingency held to import consideration.</p> <p>Where a series of notes were given in the settlement of an old obligation for which the makers were liable as sureties, a provision in the last note that in event of payment of the other notes it should be surrendered without payment will be presumed supported by consideration.</p> <p>5. Bills and notes &wkey;> 129(1) — Payee held not entitled to enforce last note of series which provided for surrender on payment of other notes.</p> <p>In compromise of an obligation for which it was liable as surety, defendant executed a series of 19 notes payable monthly, all of which provided that in event of default plaintiff might declare the entire series due and gave plaintiff the same option if defendant went out of business. The last note provided that, should all of the other notes of the series be paid at maturity, it would be surrendered without payment. For considerable time defendant acquiesced in delays in payment of the notes, and on plaintiff making objection to delay in payment of the ninth note defendant paid all the remaining notes of the series except the last, and sold its business. Held that, as plaintiff’s acquiescence in delay in payment of previous notes was a waiver of its right to declare the entire series due because of delay in payment of the ninth note, and as defendant, instead of again defaulting, paid all of the notes, plaintiff could not declare the last note due because defendant sold its business; the purpose of that restriction being merely to secure payment.</p> <p>6. Bills and notes &wkey;>I29(lj — Payee held to have waived right to declare series of notes due by acquiescence in delay.</p> <p>Where payee of a series of notes payable monthly, which provided that the entire series might' be declared due in event of delay in payment of one, acquiesced in delay in payment of several notes, it thus waived its right to declare the next note of the series due, but, if the maker, after objection and attempt to declare succeeding notes due, again defaults, the right revives.</p>

Error from District Court, Eastland Coun-, ty; Joe Burkett, Judge. Suit by Louis M. Osborn against the Texas Pacific Coal & Oil Company, in which John M. Winsett intervened. Judgment entered that plaintiff take nothing from defendant Oil Company and intervener lessor be decreed cancellation of oil lease, and the plaintiff brings error.

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Action by Charles F. Rock against Frank Keton. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Suit by the Texas & Pacific Coal & Oil Company against J. B. Ames, B. S. Walker, and others, wherein William Black and another intervened. From the judgment, defendant Walker appeals.</p>

<p>1.Mortgages <@=>133 — Renewal deed of trust held not to include machinery.</p> <p>Where a renewal of a deed of trust, given after the mortgagor had installed machinery under a contract with the seller that it should remain personalty until paid for, did not specify the machinery, but provided that the renewal should cover the same property included in the original deed of trust, the deed of trust did not include the machinery, unless it became part of the realty as a fixture.</p> <p>2. Fixtures <@=>19 — Machinery installed under agreement that it should remain personally held not to have become a fixture.</p> <p>Where machinery was sold to a mortgagor under an agreement that it should remain personalty and should be subject to a chattel mortgage for payment, the intention of the seller and mortgagor will control, and the machinery being such that it could be removed without damage to the realty, it did not become part of the realty under the doctrine of fixtures.</p> <p>3. Fixtures <@=>35 (2) — Machinery held removable without injury to realty.</p> <p>Where gin machinery was sold under an agreement that it should remain personalty and be subject to removal, a chattel mortgage being given for the purchase price, evidence held to show that it could be removed without injury to the buildings in which it was installed, so that it did not become affixed to the realty so as to become part thereof.</p> <p>4. Fixtures <@=>19 — Mortgagee not entitled to hold new machinery installed on theory that removal injured the old machinery subject to its lien.</p> <p>Where a cotton gin was mortgaged and on the mortgagor securing upon credit a steel gin stand, etc., the old frame gin stands were removed, but it did not appear that discontinuance in use injured them, the mortgagee, whose deed of trust did not specify the machinery, cannot hold the new machinery, which was subject to a chattel mortgage for the purchase price, particularly as the deed of trust did not obligate the mortgagor to keep the old machinery in repair or operation.</p>

<p>1. Statutes <S=>8!/2(I) — Legislature may by special act without notice create independent school district.</p> <p>Though the incorporated city of Gonzales had assumed control of the public schools under the general laws and become a taxing district as authorized by Const, art. 11, § 10, the Legislature may nevertheless under article 7, § 3, provide for formation of school district by local law without notice and create a special school district including the city without notice of intention to apply for the local or special law as required by article 3, § 67.</p> <p>2. Constitutional law <g=>278(2) — Creation of special district taking'title to school property formerly in city not a deprivation of property without due process.</p> <p>Sp. Laws (1st Call. Sess.) 1913, c. 14, creating the Gonzales independent school district, which included the incorporated city of Gonzales, and passing title to school property heretofore vested in the city, is not invalid, as working a deprivation of property without due process of law, for the beneficial title of the property at all times is in the people.</p> <p>3.Schools and school districts <&pl 01— District formed by inclusion of city cannot “tax” additional lands at a rate in excess of those within city.</p> <p>Where, by Sp. Laws (1st Call. Sess.) 1913, c. 14, creating, the Gonzales independent school district, which included all of the lands within the city of Gonzales as well as additional territory, school property in the city of Gonzales passed to the new district subject to a necessary tax of 17 cents per $100 to satisfy bonds issued by the city under authority of Rev. St. 1911, art. 924, held, that the 17-cent tax was a tax within Const, art. 7, § 3, and as the taxing power of the city was restricted by article 8, § 9, to 25 cents for-city purposes and 25 cents for the erection'of public buildings, the district could not levy taxes up to the 40-cent limit authorized, but was restricted to 33 cents, for the levy of 40 cents in addition to 17 cents would exceed the constitutional limit, and to tax the lands outside the city at 40 cents and those inside at 50 cents would result in unequal and disproportionate taxation.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Tax— Taxation.]</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>Action by S. E. Swim against H. A. Bell. Judgment for plaintiff was affirmed by Court of Civil Appeals (17S S. W. 850), and defendant brings error.</p>

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Suit by W. E. Herring, guardian, against A. C. Barber and others. From a judgment of the Court of Civil Appeals (203 S. W. 142), reversing a judgment for defendants, the latter bring error.</p>

<p>1. Commerce <&wkey;35 — Shipment held a foreign shipment.</p> <p>A shipment of cattle originating in Mexico carried to El Paso, Tex., is a foreign shipment, as the cattle were transported through a port of entry, notwithstanding the shipment was carried only a short distance in Texas.</p> <p>2. Commerce <&wkey;I0 — Prior to Cummins Amendment Interstate Commerce Act did not apply to foreign shipment.</p> <p>As the purpose of the original Interstate Commerce Act of 1887 (U. S. Comp. St. § 8563 et seq.) was merely to regulate commerce between the several states and compel interstate carriers to make their charges reasonable, section 22 (U. S. Comp. St. § 8595), preserving the existing remedies at common law and as prior to the Carmack Amendment of 1906 to section 20 (U. S. Comp. St. §§ 8604a, 8604aa), prescribing a rule of liability in case of interstate shipments, the carriers’ liability for such a shipment was either that of the general common law or that determined by the public policy of the particular state, the Commerce Act prior to the Cummins Amendment 1915 (U. S. Comp. St. §§ S592, 8604a) to the Carmack Amendment, which extended its scope to foreign shipments, did not apply to a shipment from Mexico to Texas.</p> <p>3. Commerce <&wkey;IO — Before action by Congress the liability of foreign carriers in interstate or foreign commerce may be regulated by the states.</p> <p>In the absence of action by Congress, the subject-matter of the liability of common carrier for loss or injury to property transported in foreign or interstate commerce belongs to that class of regulations which the states may control.</p> <p>4. Commerce <3=58(12) — Congress having regulated liability of interstate carrier, state regulations are superseded.</p> <p>Congress having legislated by the Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa) on the liability of interstate carriers, state laws and rules in so far as applicable to interstate shipments are superseded.</p> <p>5. Commerce <&wkey;IO — Before Interstate Commerce Act was applicable to foreign commerce and where foreign law is not proved, court properly applied its own law.</p> <p>Where a shipment from Mexico to Texas occurred before the Cummins Amendment (U. 5. Comp. St. §§ 8592, 8604a), so that the Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.) was not applicable, and the Mexican law was not proven, the courts of Texas properly applied their own laws.</p> <p>6. Commerce &wkey;> 10 — Before Cummins Amendment requirement of shipping contract that claim must be made on shipment from Mexico within day after delivery void.</p> <p>Where a shipment of live stock from Mexico to Texas occurred before the Cummins Amendment (U. S. Comp. St. §§ 8592, 8604a), so that the Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.) was not applicable, a stipulation in the shipping contract requiring notice of claim in writing within a day after delivery of the stock and before the same should be withdrawn from the point of destination and mixed with other animals is void.</p> <p>7. Oarriers <&wkey;2l8(8)— Duty of carrier* to furnish suitable cars notwithstanding stipulation requiring shipper to bed, inspect and accept cars.</p> <p>It is the duty of a carrier to furnish suitable cars in which to transport a shipment of cattle, and he cannot escape liability for failure to perform that duty, because the shipping contract required the shipper to bed, inspect, and accept the cars.</p>

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Action by the Hico Oil Mill against the Southwestern Surety Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (203 S. W. 137), and defendant brings error.</p>

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Suit by the Trussed Concrete Steel Company of Texas and others against the Hess & Skinner Engineering Company and the Lion Bonding & Surety Company, in which the Trinity Portland Cement Company and another intervened. Judgment for plaintiffs and interveners was reversed and rendered in part and affirmed in part by Court of Civil Appeals (204 S. W. 1176), and the named in-tervener brings error.</p>

<p>1. Banks and banking &wkey;>H8 — Exercise by president of power to issue drafts assumed to be lawful.</p> <p>The exercise by the president of a bank of the general power to issue its drafts, which power may be expressly given by hoard of directors or conferred by established custom, and which, if no restriction is placed on it, includes authority to issue drafts in payment of his own debts, is assumed to be lawful in the absence of opposing facts.</p> <p>2. Bills and notes &wkey;34l — One receiving president’s draft in payment of individual debt not put on inquiry as matter of law whether it was paid for.</p> <p>Merely because a bank’s draft is issued by its president in payment of his individual debt, the creditor is not as matter of law charged with duty of inquiry as to whether it had been paid for, though the president’s power to issue drafts, whether in payment of his own debts_ or to another, is conditioned on the bank’s being paid therefor; the presumption of honesty being indulged.</p> <p>3. Banks and banking &wkey;>l 12 — Whether one receiving president’s draft in payment of individual debt was put on inquiry held question of fact.</p> <p>Whether one receiving a bank’s drafts in effect drawn by its president in payment of the president’s individual debt was put on inquiry as to his having paid therefor lieií a question of fact in view of evidence of the president’s known absolute control and domination of the bank’s affairs, the large amount of the drafts, and the fact of their being drawn on different and distant banks.</p> <p>4. Banks and banking <&wkey;l 13 — Whether a bank had ratified issuance of drafts by president and was estopped to deny authority question of fact.</p> <p>Whether a bank had by its directors acquiesced in or ratified the issuance of drafts by its president, and hence was estopped to deny his authority, TieW, under the evidence, a question of fact.</p>

<p>1. Insurance <&wkey;>328(8) — Placing deed in es-scrow not change in interest of insured under tire policy.</p> <p>Change of interest of insured within a provision avoiding a fire policy therefor did not result from the execution of a deed and placing it in escrow with a bank, where the condition on which its delivery was to be made was unfilled, and the deed was not delivered by the bank at the time of the fire.</p> <p>2. Insurance <&wkey;I46(3) — Construction against forfeiture.</p> <p>Provisions of forfeiture in fire policies will be construed with strictness, and clear and unambiguous language and acts plainly within such language are necessary before a forfeiture is enforced.</p> <p>3. Insurance <&wkey;328(I4) — Foreclosure when “commenced with knowledge of insured.”</p> <p>A proceeding commenced with “knowledge of insured” within provision of fire policy, providing that it should be void if with knowledge of the insured foreclosure proceedings be commenced, etc., means foreclosure commenced with insured’s knowledge, and not a foreclosure of which he gains knowledge after it is filed, but knowledge of immediate purpose to file is tantamount to knowledge of commencement.</p> <p>4. Insurance <&wkey;328(!4) — Opinion that foreclosure suit would be filed not knowledge thereof under fire policy.</p> <p>The fact that insured had an opinion that one holding a lien against the insured property would file foreclosure suit against Mm if he did not meet his obligation did not render filing of suit a commencement of the foreclosure with knowledge of insured, within a provision avoiding the policy in that event.</p>

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Suit by James A. Baker and others, as receivers, etc., against Karl I). Druesdow and others, wherein defendant Druesdow brought cross-action., From judgment for such defendant, plaintiffs appealed to the Court of Civil Appeals, which reversed and rendered judgment in favor of plaintiffs (197 S. W. 1043), and defendants bring error.</p>

Action by C. D. Brown against A. A. Lump-kin, administrator of the estate of Charles R. Jones, deceased. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed the judgment (206 S. W. 217), and defendant brings error.

<p>Appeal from District Court, Taylor County ; Harry Tom King, Judge.</p> <p>Suit by Belton D. Frost and others against G. H. Johnson and others. From the judgment, defendants appeal.</p>

<p>Appeal from District Court, Coleman County; J. O. Woodward, Judge.</p> <p>Action by Upton Henderson against Margaret E. Chesley and others. Judgment for defendants, and plaintiff appeals.</p>

Error from 'District Court, Ellis County; E. L. Hawkins, Judge. Action by Mrs. Etta Carroll, as next friend of Bethel Welborn, against Will Embry for false imprisonment and for conversion. A plea to abate was sustained, suit dismissed, and plaintiff brings error.

<p>1. Divorce <&wkey;200 — Power to determine property rights dependent upon granting divorce.</p> <p>Under Rev. St. art. 4634, the power- of the court to determine property rights is dependent upon the granting of a divorce to one of the parties.</p> <p>2. Abatement and revival <@=69 — Action for divorce dismissed on appeal on death, of appellant.</p> <p>Where judgment of divorce was entered for wife, and property declared community, each party being entitled to an undivided one-half interest, and defendant appealed, but died after submission of the cause on appeal, a motion by appellee, requesting the court to reverse the cause and order it dismissed from the docket of the trial court, will be granted, since the issues thereby become moot, including the property rights, under Rev. St. art. 4634.</p> <p>3. Appeal and error <&wkey;843(l) — Court will not concern itself with moot questions.</p> <p>The appellate court will not concern itself with decision of abstract and moot questions which can lead to no practical relief.</p> <p>4. Abatement and revival <&wkey;69 — Appeal and error <&wkey;78l (I) — Statutes, providing that cause will not abate on appeal on death of party, inapplicable where questions have become moot.</p> <p>Rev. St. arts. 1618, 1549, to the effect that a cause appealed to one of the appellate courts will not abate upon death of either party to the record, are not applicable, where the questions involved on the appeal have become moot by reason of the death of a party, such as in a divorce case.</p>

<p>I. Carriers &wkey;»28l — High degree of care must be exercised to protect passenger mentally incapable.</p> <p>When a passenger, after being received as such, to the knowledge of the carrier becomes unable to care for himself by reason of mental incapacity, it is the carrier’s duty to exercise a high degree of care to protect the passenger from dangers incident to his surroundings and mode of travel, and though employees have no knowledge or reason to believe a passenger is laboring under mental disability when receiving him as such, yet, if such knowledge be acquired after he becomes a passenger, the earlier owes him a duty to exercise such care as may be reasonably necessary for his safety.</p> <p>2. Carriers <&wkey;320(3) — Whether employees were apprised of woman passenger’s mental condition held for the jury.</p> <p>Where a woman, while on a journey, jumped from the window of a train which had stopped, and was placed on a later train by city authorities, the question whether the servants of the carrier, who allowed her to sit by an open window through which she jumped while the train was in motion, knew of her mental condition and exercised due care under the circumstances, held) under the evidence for the jury.</p>

<p>Appeal from District Court, Navarro County; IT. B. Daviss, Judge.</p> <p>Action by the Corsicana National Bank against J. A. Lancaster and others, with, plea in reconvention. From the judgment, defendants appeal.</p>

<p>1. Adverse possession <&wkey;>!9 — Occupants who did not cultivate or use land did not acquire title by inclosure.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5075, though defendant and those under whom he claimed cleared and fenced land involved in trespass to try title, and had continuous peaceable, adverse, and uninterrupted possession thereof for more than ten years before suit was commenced, unless they either cultivated, used, or enjoyed it during such time, they did not acquire title by ten years’ limitations.</p> <p>2. Judgment <&wkey;736 — Judgment operated as es-toppel of record against party who had acquired title by adverse possession.</p> <p>If ten years’ possession of land involved in trespass to try title was accompanied by cultivation, use, or enjoyment of the land so as to vest the title thereto in defendant’s vendor before judgment in suit adverse to him on disclaimer was rendered, such judgment operated as an estoppel of record against him and those claiming under him to assert the title he had so acquired.</p> <p>3. Adverse possession <s=>50 — Disclaimer filed in suit by occupant broke continuity of possession.</p> <p>If ten years’ possession of land involved in trespass to try title was not completed when the occupant disclaimed title in another suit, such disclaimer operated to break the continuity of his adverse possession, and he never acquired title to the land by force of the ten-year statute, as the ten years would have to be computed from the date of filing disclaimer; ten years from such date not having in fact-elapsed when the present suit was commenced.</p> <p>4. Trespass to try title <&wkey;34, 47(2) — Disclaimer by defendant entitles plaintiff to judgment for part affected; judgment for plaintiff operates as estoppel.</p> <p>In trespass to try title, in the absence of a reason why in equity it should not have such effect, an unqualified disclaimer by defendant of a part of the land sued for entitles plaintiff to judgment for the part to which the disclaimer applies, and when judgment is rendered in favor of plaintiff for such part, it operates as an estoppel against defendant to assert any right he may have had to such part, a rule which has application where one of two parties who join as plaintiffs each suing for a separate and described part of a tract disclaims any claim of right to the part the other sues for, and judgment is rendered for each for the part for which he sues.</p> <p>5. Trespass to try title <§=>34 — That suit was friendly no reason why effect should not be given disclaimer of one plaintiff.</p> <p>The fact that suit in trespass to try title by two plaintiffs suing for different tracts was a friendly one is no reason why effect should not be given by way of estoppel to disclaimer therein by one plaintiff of the tract claimed by the other.</p> <p>6. Trespass to try title <&wkey;34 — Disclaimer held not insufficient.</p> <p>In trespass to try title, defendant’s plea setting up the ten-year statute of limitations, showing that while defendant disclaimed title to any of the lands sued for of which he was not in possession he asserted he was in possession of all of it, held not insufficient as containing a disclaimer as to part of the land sued for and not sufficiently describing the part to which the disclaimer did not apply.</p>

<p>1. Boundaries <&wkey;37(I) — Evidence held to justify finding no survey of particular tract made on ground.</p> <p>In suit by the state and others to recover from an oil and gas company and others a strip of land, evidence held to justify the court’s finding that no survey was made on- the ground of a particular tract, but that, it was merely constructed on the west line, the north and south ends of which were established 'by a Cali for natural objects.</p> <p>2. Boundaries <&wkey;3(5) — Lines can be constructed by course and distance where two corners not identified.</p> <p>Where the northwest and southwest' corners’ of a survey were identified, and the other two corners not, the east line calling for .an uncertain corner, it was permissible to construct the boundary lines by course and distance; the evidence tending to show that no.;aCtual survey of the land was made by the original, surveyor.</p> <p>3. Dismissal and nonsuit &wkey;>24 — -Plaintiffs cart dismiss parties without interest.</p> <p>Plaintiffs had the right to ¡dismiss' from! their suit two .parties not shown -by the bill of exceptions to have had any interest, and defendants had no right to interfere to prevent such dismissal.</p>

<p>Trial <©=v 139(1) — Conclusive evidence necessary to justify direction of verdict.</p> <p>Evidence to warrant direction of verdict for plaintiff must be of a conclusive character.</p>

M. Richey, Judge. Suit by J. N. Barnes against tbe Providence Sanitarium for damages for personal injury. Instructed verdict and judgment for the defendant, and the plaintiff appeals.

Error from Jefferson County Court; D. P. Wheat, Judge. Action) between the Queen City Motor Company and others and the Texas Auto Supply Company. Judgment was adverse to the former parties, and they bring error. Case ordered stricken from docket.

<p>I. Executors and administrators <&wkey;437(7)— Rejection of unverified complaint did not set in motion the statute of 90 days’ limitation.</p> <p>Administrator’s rejection of unverified complaint did not set in motion the statute of 90 days’ limitation.</p> <p>2. Limitation of actions <§=U95(3) — Administrator has burden of proving that claim was barred by limitations.</p> <p>In action against administrator on rejected claim, claimant was not required to prove that claim was not barred by limitations, but burden of pleading and proving tbe claim was barred was on tbe administrator.</p>

<p>Appeal and error <&wkey;>773(4) — Judgment affirmed where no briefs filed.</p> <p>A judgment based on the verdict of the jury will not be disturbed; neither party having filed briefs in the appellate court, where no fundamental error appeared.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by Emma Burgemeister Turley and others against Bessie Campbell and others. Judgment for plaintiffs, and defendants appeal.</p>

F. Mullally, Judge. Suit by Z. T. Nesbit against Mary I. Richardson and another, as executrix and as executor respectively of the estate of Asher Richardson, deceased. Judgment for defendants, and plaintiff appeals.

J. Alexander, Judge. Action by the Millers’ Indemnity Underwriters against H. W. Cook and others to set aside an-award made by the Industrial Accident Board under the Workmen’s Compensation Law. Judgment sustaining the award,, and plaintiff appeals. Reversed and award set aside.

<p>I.Appeal and error &wkey;>1066 — Unnecessary instruction held not reversible error.</p> <p>In action to recover title to land, a statement by the court, as a preamble to interrogatories, that “the evidence shows that the plaintiffs were in possession of the land in controversy at the time of the institution of this suit,” was not reversible error, where the undisputed-facts showed that plaintiffs did have possession, although the statement might have been, properly omitted from the charge as unnecessary. /</p> <p>2. Evidence <&wkey;>383(7) — Recitals of heirship to power of attorney not conclusive.</p> <p>In action to recover title to land, where ■ defendant claimed title to an undivided interest under M. and N. as heirs of the original paten-tee, but the only evidence of such heirship was the recital thereof in a power of attorney given by M. and N., the jury had the right to conclude from the absence of any stronger evidence that M. and N. were not among the heirs of the original patentee.</p> <p>3. Adverse possession <@=>46 — Stretching a single wire along part of land held not sufficient to interrupt possession.</p> <p>In action to recover title to land, which was used principally as a pasture for stock, there being evidence that the husband of one of the defendants at one time stretched a single wire, not sufficient to turn stock, along part of the land, intending to segregate a portion as his wife’s property, and that a short time thereafter plaintiffs’ predecessor R., then claiming the property, removed the tvire and notified defendants, and there was nothing to indicate that his stock were disturbed or his actual possession otherwise interfered with, an instruction that the action of defendant’s husband was not sufficient to interrupt the peaceable and continuous possession of plaintiffs and their predecessors if the jury believed that R., immediately on discovering the wire, removed it, was not error.</p> <p>4. Trespass to try title <&wkey;38(3) — Prior possession presumably title in absence of possession or reliable paper title by adverse claimants.</p> <p>In action to recover title to land, where there was no evidence that defendants or those under whom they claimed ever had actual possession and no proof of a reliable paper title connecting defendants with the original paten-tee under whom they claimed, plaintiffs’ prior possession alone was sufficient to support a presumption of title in them.</p>

<p>1. Frauds, statute of &wkey;l29(9) — Parol sale or gift of land must be followed by delivery and improvements.</p> <p>A parol contract for the sale or gift of land is not enforceable unless followed by delivery of possession and the making by the vendee or donee of valuable and permanent improvements which materially enhance the value of the property.</p> <p>2. Gifts <&wkey;49(4)— Donee of land held not to show making of permanent improvements.</p> <p>In action to recover title to and possession of land claimed by defendants under a parol gift, defendants held to have wholly failed to discharge the burden of showing that they made valuable improvements on the pioperty of a character that materially enhanced its value, as contemplated by the rule that a parol contract for sale or gift of land is not enforceable unless followed by delivery of possession and making the valuable and permanent improvements which materially enhance the value of the property.</p> <p>3. Partnership <&wkey;l38 — Gift of land of firm by one partner not binding bn others.</p> <p>A gift of a house and lot to an employee by one partner was not binding on the others where they had no knowledge thereof.</p> <p>4. Partnership &wkey;» 159 — Notice to one partner held not notice to others of adverse claim.</p> <p>Where notice to one partner of an adverse claim of title and possession to a house and lot by an employee of the partnership was based on alleged gift of such house and lot by such partner, there was no notice to the partnership of adverse claim and possession; other partners not knowing of or consenting to the gift.</p> <p>5. Adverse possession <&wkey;80(4), 64 — Employee living in house belonging to partnership es-topped to claim title adversely without repudiation of license.</p> <p>An employee of a partnership living in a house of the partnership on the property was estopped to claim title adversely to the partnership under the statute of limitation or otherwise without a clear repudiation of his holding as a licensee and notice of such repudiation brought home to the partnership through some member or members of the firm under such circumstances as to be legally binding upon the firm and the members thereof individually, although one of the partners without authority made a parol gift of the house and lot to the employee without knowledge or consent of the other partners, employee not making permanent improvements which would enhance the value of the lot; hut employee could set up the statute of limitations as to the undivided interest of the partner making the gift of the house and lot.</p>

<p>Railroads <&wkey;4l I (5) — Liable for failure to uso ordinary means to prevent Injuring animal on unfenced track.</p> <p>Railroad held liable ,’for death ' of mule, where, after discovery of the mule on the track at a place not required to be fenced, the trainmen did not use ordinary means to prevent injuring it, and where such failure was proximate cause of the mule’s death.</p>

<p>Appeal from District Court, McLennan County; Jas. P. Alexander, Judge.</p> <p>Suit by the E. H. Bruyere Construction Company against Walter Bewley. Judgment for defendant, and plaintiff appeals.</p>

Prince, Judge. Suit by Joe Meyer against Leman Sheffield and others. Judgment for plaintiff, and defendants appeal. Joe Meyer, claiming to own the land in fee simple, brought the suit against Leman Sheffield and others in trespass to try title to 188 acres of land.

<p>1. Municipal corporations <&wkey;594(4) — Ordinance does not apply to gasoline company which had obtained permits for stations before passage.</p> <p>A dty ordinance relative to the construction and maintenance of gasoline filling stations should not be held to operate against and affect an oil and refining company, which had obtained all permits necessary for erection of a filling station prior to passage of the ordinance.</p> <p>2. Municipal corporations &wkey;>594(l) — Penal ordinance construed strictly against accused.</p> <p>A city ordinance relative to the construction and maintenance of gasoline filling stations, providing that any person, firm, or corporation violating any provision should be deemed guilty of a misdemeanor, etc., was penal in effect, and to be construed strictly against accused and favorably and equitably for him.</p> <p>3. Municipal corporations <&wkey;594(4) — Ordinance regulating gasoline filling stations held to apply to those in operation without permit.</p> <p>Reference in section 3 of ordinance of city of Fort Worth regulating the construction and maintenance of gasoline filling stations to consideration by the commissioners of how long existing filling stations have been in operation, and consent or acquiescence in their location by adjacent owners, etc., held to be to filling stations already in operation, but which had not secured permit under any ordinance.</p> <p>4. Statutes 4&wkey;263 — Given prospective operation, unless contrary intention clearly appears.</p> <p>Unless a contrary intention clearly and strongly appears and is manifested in appropriate words, a statute will always be given a construction that will make it operate prospectively, where to do otherwise would be to materially change existing rights.</p> <p>■5. Municipal corporations &wkey;>fi((3) — City ordinance, unless expressly authorized, must be reasonable.</p> <p>A city ordinance, unless expressly authorized by the Legislature, must be reasonable.</p>

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>Action by H. D. McCoy against Texas Power & Light Company. Judgment for defendant on demurrer, and plaintiff appeals.</p>

<p>Appeal from District Court, Clay County; H. F. Weldon, Judge.</p> <p>Action by W. H. Champion against R. U. Taylor and wife. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Van. Zandt County; Joel R. Bond, Judge.</p> <p>Action by J. M. Foreman and wife against Walker D. Hines, Director General of Railroads. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Judgment <§=593 — Separate actions maintainable for each breach of agreement on sale of cotton gin not to operate gin in community.</p> <p>Although a contract by which seller of a gin plant agreed to refrain from operating another plant in the community for an indefinite period of time is entire in the sense that such promise is single, it was subject to separate and distinct breaches for each of which damages is recoverable.</p> <p>2. Good will <§=5 — Contract held to pass good will by implication.</p> <p>Where party sold a gin plant agreeing not to engage in the ginning business in the community, the good will, though not mentioned in the contract, was conveyed; the character of the transaction being such as to pass it by implication.</p> <p>3.Judgment <§=590(4) — Damages for continuing breach of contract not barred by application for injunction not issued until five years later.</p> <p>In buyer’s action against seller for breach of agreement not to engage in the same business in the community, where a writ enjoining further violation was applied for but refused by the trial court but ordered five years later on appeal, defendants haying violated the contract pending the entire appeal, plaintiff is entitled to recover for the injuries thus inflicted.</p>

<p>Appeal from District Court, Liberty County; J. L. Maury, Judge.</p> <p>Action between the West Louisiana Bank and E. O. Terry and others. From judgment for the latter, the Bank appeals.</p>

<p>Error from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Suit by C. K. Murphy and wife against L. A. White, J. C. Gorman, and the Lone Star Gas Company to set aside a mineral lease. From a judgment for plaintiffs against all defendants and for the Gas Company upon its cross-action against its codefendants, the defendants White and Gorman bring error. Affirmed in part, and reversed and rendered in part.</p>

P. Walker, Judge. Action by F. G. Garrison against John O’Neil. Judgment for plaintiff in a justice court overuling defendant's plea of privilege was affirmed, by the county court, and defendant appeals.

Error from District Court, -Stephens County ; W. R. Ely, Judge. Suit by A. J. Curry and others against the Texas Company. From judgment for plaintiffs, defendant appeals. Judgment reversed, and judgment rendered for defendant.

P. Alexander, Judge. Action by J. E. Porter and others against J. F. Arnold, in which the First National Bank of Waco was garnished and in which King & King intervened, claiming ownership of money disclosed as belonging to defendant. Judgment for plaintiffs, and inter-vener and others appeal.

<p>1. Champerty and maintenance <©=35(6) — Provision in contract prohibiting client from settling claim does not render contract void.</p> <p>A stipulation in a contract of employment of attorneys, to the effect that the client could not settle his claim without the attorneys’ consent, did not render the contract void as against public policy.</p> <p>2. Attorney and client <@=3148(2) — Contract held not one for contingent fee, but for interest in case.</p> <p>A contract between attorney and client, “In order to secure the services as attorneys in the case of the death of my husband, J. D. K., * * * I hereby set over to said attorneys one-third of same against all parties,” etc., did not provide for a contingent fee, but was an assignment of a one-third interest in the case, rather than any amount or judgment which might be recovered by prosecuting the litigation.</p> <p>3. Attorney and client <@=3199(4) — Attorney, suing adverse party for making fraudulent settlement with client, need not allege facts -showing liability.</p> <p>In an action against defendant to recover one-third of amount paid by defendant to client by attorneys, who had been assigned a one-third interest in a cause of action against defendant in order to secure their services, it was not necessary to plead and prove all the facts which would have been necessary in the original action to entitle their client to recover.</p> <p>4. Attorney and client <@=3 199(4) — Adverse party compromising with client held shown to have notice of attorney’s interest In cause of action.</p> <p>In an action by attorneys against opponent of their client, who fraudulently compromised with their client, evidence held to show that defendant had actual notice of plaintiffs’ one-third interest in their client’s cause of action.</p>

B. Daviss, Judge. Action by Mrs. Patty D. Thornell against the Missouri State Life Insurance Company. Judgment for defendant, and plaintiff appeals. The Missouri State Life Insurance Company on February 13, 1918, issued two policies of life insurance, each in'the sum of $1,000, payable upon the death of Thomas A. Thornell to Patty L. Thornell, wife of the insured, as beneficiary.

<p>Appeal from District Court, Kendall County ; 'R. H. Burney, Judge.</p> <p>Action by Beulah Guidry against Rudolph Yogt. Judgment for plaintiff, and the defendant appeals.</p>

<p>1. Landlord and tenant <&wkey;23— No difference between terms of oral and written contract for rental year.</p> <p>There is no difference between the validity of the terms of an oral contract and one in writing in respect to renting land from landlord for the rental year.</p> <p>2. Landlord and tenant &wkey;>33l(5) — Pleading held to show that landlord, breaching contract, had notice of crops to be planted.</p> <p>An answer, in an action by landlord on notes and to foreclose lien for money advanced for mules and machinery, wherein defendant sought damages for breach of contract to lease by plaintiff, JteZa! to sufficiently charge that plaintiff had notice of the kind of crops that defendant intended to plant on the tract which plaintiff later refused to let.</p> <p>3. Trial &wkey;>l58 — Genera! motion to strike out all testimony not to be considered.</p> <p>A motion to strike from the record all testimony introduced by the adverse party is very far-reaching, and should never be entertained, where there is any material testimony, however slight, bearing on issues under investigation.</p> <p>4. Trial <&wkey;>260(l) — Not error to refuse requested charge covered by given charges.</p> <p>The court did not err in refusing to give a requested charge embracing more than one subject, where each one of such subjects was covered by the general charge.</p> <p>5. Trial &wkey;>l94(l) — Instructions on weight of evidence properly refused.</p> <p>Special requested charges were properly refused, where they were on the weight of the evidence.</p> <p>6. Landlord and tenant &wkey;>22(3) — Tenant need not accept other lands on breach by landlord of agreement to let.</p> <p>In an action wherein tenant obtained damages for breach of.contract to rent land, an assignment that verdict of jury was contrary to the evidence, in finding that landlord breached the contract to tenant’s damage, because it was conclusively shown landlord offered to let tenant have another tract of land in every respect equally as good in quality and condition as the tract he did not get, was without merit, since the tenant had a perfect right to insist upon the contract he made.</p> <p>7. Set-off and counterclaim <i&wkey;29(l) — Tenant entitled to set up damages for breach of contract in action on notes.</p> <p>In an action by landlord on notes for money advanced to purchase farming implements, on which plaintiff then had a landlord’s lien and a chattel mortgage lien, tenant was entitled to set up his unliquidated damages for breach of an oral agreement of the plaintiff landlord to lease defendant a certain other tract of land by way of counterclaim in the form of a cross-action, all growing out of the same transaction.</p>

<p>(.Waters and water courses <&wkey;II9(0— Landowner protecting his land from water, may not thereby injure the property of another.</p> <p>While a landowner may use proper means to protect his land from water, he must not use his neighbor’s land nor his own in such a manner as to destroy or deteriorate the property of another nor interfere with the lawful use or enjoyment thereof.</p> <p>2. Waters and water courses <&wkey;l 19(2) — Diversion of all surface water from defendant’s land into drain passing over piaintiif’s land held invasion of plaintiff’s rights.</p> <p>Where a landowner built a dam on his land to obstruct the flow of waters from a hill diverting them from a former course, and opened a new ditch casting all the water which would have gone across his land into a drain that ran across piaintiif’s land, such action constituted a flagrant invasion of the rights of plaintiff.</p> <p>3. Waters and water courses <&wkey;l25 — Landowner liable in compensatory damages for concentration and discharge of surface water on (and of another.</p> <p>A landowner is liable in compensatory damages for the construction of dams and ditches on his land so as to concentrate surface water and discharge it on the land of another.</p> <p>4. Waters and water courses <@=>124 — Party injured by wrongful discharge of surface water by another may abate nuisance.</p> <p>Where landowner by construction of dams and ditches on his land has concentrated surface water and. discharged it on the land of another, the injured party is not only entitled to damages, but may abate the nuisance.</p> <p>5. Nuisance <&wkey;>9 — Creator liable for continuance, though he conveys property.</p> <p>The creator of a nuisance cannot by conveying the property to a third person escape liability for damages caused by thei continuance of the nuisance.</p> <p>6. Nuisance <&wkey; 10 — Purchaser liable for affirmative- acts.</p> <p>The purchaser of land on which exists a nuisance created by his grantor is not liable for merely permitting it to remain or continue in the absence of a request to abate it, but, where he by affirmative acts continues the nuisance, he is liable for all damages caused thereby.</p> <p>7. Waters and water courses &wkey;>l 19(6)— Purchaser of land increasing wrongful concentration of surface water commenced by his grantor held liable as for nuisance.</p> <p>Where a landowner constructed a dam on his property concentrating surface water and discharging it on plaintiff’s land, and thereafter sold the land to another, who built the dam higher, dug new ditches, and cleaned out the old ones, thus increasing the flow of surface water, such purchaser thereby made the nuisance his own and became liable for all damages caused by it after his connection therewith.</p>

<p>Appeal from District Court, Tarrant County; Ben. M. Terrell, Judge.</p> <p>Suit by R. L. Tankersley against tbe Texas Company. Prom order overruling pleas of privilege and in abatement, defendant appeals. Judgment reversed, and judgment rendered changing venue.</p>

<p>1. Brokers <&wkey;85(I)— Evidence that landowner undertook to pay actual expenses properly excluded in broker’s action for commission.</p> <p>Evidence that a landowner had undertaken to pay all actual expenses of a broker was properly excluded in an action for commissions by a broker who had procured a purchaser, where the transaction failed because vendor’s wife would not sign the deed, the property being a homestead, for the evidence excluded offered no excuse for failure to pay the amount agreed.</p> <p>2. New trial <&wkey;99 — Evidence held not newly discovered and not sufficient to affect result.</p> <p>Where a broker procured a purchaser, but the vendor’s wife refused to sign the deed, and the sale failed, it was not an abuse of discretion in an action by the broker for commission for the court to overrule a motion for new trial on the ground of newly discovered evidence that the purchaser would not have bought unless the vendor’s wife joined; for as the purchaser testified that he was willing to purchase whenever an abstract and valid deed were delivered, such evidence could not have been newly discovered and would not have affected the result on another trial.</p> <p>3.Brokers <&wkey;6l (3) — Broker who produces purchaser may recover commissions though sale not made because owner’s wife refused to sign deed.</p> <p>A broker having procured the designated purchaser is entitled to recover his commissions, though the sale was not made because the owner’s wife refused to sign the deed, the property being a homestead; for, as the offer was not conditioned on the procuring of the wife’s signature, the broker could not be defeated of his rights either because the wife was obstinate or she sought to enable her husband to escape his obligation.</p>

<p>Appeal from Ellis County Court; E. D. Wilson, Judge.</p> <p>Action by T. M. Dobbs against S. B. Mc-Elroy. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Oourt, Eastland County; E. A. Hill, Judge.</p> <p>Suit by Roy Mead and another against W. J. Kerwin. From judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Suit by C. N. Bustin and others against H. E. Murray and others. Erom judgment for defendants, plaintiffs appeal.</p>

Bond, Judge. Action by W. W. Welch against W. D. Hines and others. Judgment for plaintiff, and defendants appeal. J. L. Welch chartered a car from the agent of the railway company at Grand Saline to transport his household goods to Nacog-doches. The railway agent placed the car for loading on a side track. W. W. Welch, the appellee, 33 years old, was assisting J. L. Welch in loading the car.

<p>1. Remainders <g=»l— Reversions <i&wkey;l — Distinction between reversions and remainders stated.</p> <p>“Remainders” are created by deed or devise, whereas “reversions” are created by operation of law, and, regardless of how many estates are carved out of the owner’s entire estate, a reversion will be left, provided they do not amount in quantity to his original estate, and as to all the estate except the particular part granted or devised the original owner remains the owner as he originally was.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Remainder; Reversion.]</p> <p>2. Deeds t&wkey;130 — Where grantor by deed granted a life estate to his wife and if without issue to his legal heirs, a reversion in fee remained in the grantor.</p> <p>Where a deed from husband to wife granting a life estate to the wife provided the parties should live together as husband and wife, and further provided that if no issue be born to grantor or his wife the conveyance was intended to vest title, after termination of the life estate, in “my legal heirs in the same manner as they would inherit under the law,” a reversion in fee remained in the grantor upon his dying without issue.</p> <p>3. Deeds &wkey;>130 — Grantor’s heirs cannot take as contingent remaindermen after termination of life estate to grantor’s wife, but grantor retains reversion.</p> <p>Where a grantor conveyed a life estate to his wife with a remainder in favor of possible issue, and if no issue title was to vest, after termination of the life estate, in “my legal heirs in the same manner as they would inherit under the law,” and grantor died without issue, the heirs could not take as contingent remain-dermen, since a contingent remainder cannot be limited to the grantor’s heirs, and such estate continued in the grantor as a reversion in fee, which could be conveyed by him.</p> <p>4.Estates <&wkey;2 — Statute authorizing estates to commence in futuro has reference to estates other than reversion or remainder.</p> <p>Rev. St. 1911, art. 1111, providing that an estate of freehold or inheritance may be made to commence in futuro by deed or conveyance in like manner as by will, was enacted to abrogate the common-law rule that a freehold to commence in futuro could not be conveyed, and has reference to estates in expectancy other than estates in reversion and remainder.</p>

B. Daviss, Judge. Suit by the Bell Point Common' School District and others against the County Trustees of Navarro County and others. Prom a judgment overruling a motion to dissolve a temporary injunction, defendants appeal. Reversed, and injunction dissolved.

<p>1. Mortgages &wkey;37(2) — Deed may be shown by parol to be mortgage.</p> <p>A-n instrument in form a deed may be shown by parol to be in fact a mortgage as between the parties.</p> <p>2. Mortgages <&wkey;32(5) — For instrument In form a deed to be a mortgage a continuing debt necessary.</p> <p>That an instrument in form a deed may be considered a mortgage, a debt from grantor to grantee, created before or at the time of the execution of the instrument, must have continued.</p> <p>3. Evidence <&wkey;!79(2) — Defendant not producing deed on notice, plaintiff may testify to contents.</p> <p>Plaintiff may .testify to the contents of his deed to defendant, claimed to be a mortgage; it not being in plaintiff’s possession but having been left with defendant, who, though given notice to produce it at the trial, failed to do so.</p> <p>4. Tender <&wkey;!3(l) — Counting out and tendering exact amount unnecessary in view of refusal.</p> <p>Defendant when money was offered him having stated he would not accept, it was unnecessary as useless to produce, count out, and tender the exact amount.</p> <p>5. Appeal and error <&wkey;742(l) — Assignment must be followed by statement showing there was error.</p> <p>An assignment of error must under rule for briefing be followed by statement from which it can be determined whether any error was committed.</p> <p>6. Appeal and error <&wkey;959 (3)— Pleading <&wkey; 236(2) — Permitting amendment after call for trial discretionary.</p> <p>Permitting filing of amended pleadings on the day the case is called for trial, or even after announcement of ready, is in the discretion of' the trial court, and such action will not be disturbed on appeal in the absence of a clear abuse of such discretion.</p> <p>7.Appeal and error <&wkey;736 — Assignment must not contain distinct and unrelated propositions of law.</p> <p>An assignment of error objected to because containing several distinct and unrelated propositions of law cannot be considered.</p>

<p>Appeal from District Court, La Salle .County; Covey C. Thomas, Judge.</p> <p>Garnishment suit by J. H. Gearhart against the Army Bank of Ft. Sam Houston in which A. F. Childs set up a claim to the money garnished. From a judgment for plaintiff, the claimant appeals.</p>

E. Monteith, Judge. Action by Charles A. Lilienthal against the Motor Car Indemnity Exchange and another for personal injury. Judgment for plaintiff, and defendant named alone appeals.

<p>(. Appeal and error (&wkey;>l07l (I) — In absence of statement of facts, failure to file requested findings of fact and conclusions of law reversible error.</p> <p>It is the general rule that, where there is no statement of facts, the failure of the judge before whom a cause is tried without a jury to file his findings of fact and conclusions of law within 10 days after due request has been made therefor under Vernon’s Sayles’ Civ. St. art. 2075, constitutes reversible error.</p> <p>2. Appeal and error <&wkey;IÜ7l (I) — Failure to file findings and conclusions not reversible error where under statement of facts no other judgment could have been rendered.</p> <p>Where a proper statement of facts accompanies the record on appeal,, and where it is manifest therefrom that no judgment other than that rendered could have been properly rendered, the failure of the judge to file findings and conclusions in 10 days under request in' accordance with Vernon’s Sayles’ Civ. St. art. 2075, is not cause for reversal.</p> <p>3. Adverse possession &wkey;s101 — Occupancy of subdivision of larger tract not notice of claim to owner of another subdivision not actually occupied; “adverse enjoyment of land.”</p> <p>To constitute an “adverse enjoyment of land,” the act of enjoyment must be of such character as to afford grounds for an action by the real owner, and the occupancy of one subdivision of a larger tract is not notice to the owner of another subdivision not actually occupied that the occupant is claiming or intends to claim any portion of his land.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Adverse Enjoyment.]</p>

<p>Error from District Court, Callahan County; W. R. Ely, Judge.</p> <p>Suit by J. H. Erwin and others against A. J. Olsen. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from McLennan County Court; James P. Alexander, Judge.</p> <p>Action by the Central Sales Company against Everybody’s Garage and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Vendor and purchaser <&wkey;45 — Evidence of purchaser’s misrepresentation of land’s value held insufficient to go to jury.</p> <p>In a suit to set aside a deed for purchaser’s misrepresentations as to value of the land, evidence held not insufficient to go to the jury.</p>

<p>1. Judgment &wkey;>245 — No jurisdiction to construe instrument unless all persons affected are parties.</p> <p>The district court has no jurisdiction to construe an instrument affecting the title to land, unless all persons who would be affected by the judgment' have been made parties to the action so as to be bound by the judgment.</p> <p>2. Courts <&wkey;480(l) — Prosecution of subsequently filed suit not enjoined, where no jurisdiction attached in previous suit for failure to join parties.</p> <p>Plaintiffs, in action to construe an instrument in which other parties affected by construction thereof had not been joined, were not entitled to an injunction restraining the prosecution of a similar action instituted by other parties affected by the construction of the instrument in which all parties so affected had been joined, though subsequent to the filing of the second suit which constituted the commencement thereof under Rev. St. 1895, art. 1177, such plaintiffs by amendment made ah affected persons parties to their action, since jurisdiction, not having been acquired prior to such amendment, was not invaded by the filing of the subsequent suit.</p> <p>3. Courts <&wkey;475(I)— Jurisdiction cannot attach where no. cause of action is set up.</p> <p>Jurisdiction, within the rule that jurisdiction when attached cannot be taken away by subsequent proceedings in another court, cannot attach when no pleadings setting up the cause of action against any one is alleged.</p> <p>4. Venue &wkey;>7 — Bank holding money on deposit held entitled to be sued in county of residence, where action was to construe agreement relative to money.</p> <p>In action by plaintiffs, who had commenced an action to construe a booklet of owner of land, which agreed to place money in bank to be distributed among purchasers of the land if a railroad was not built to a town located on the land, to enjoin the prosecution of a similar action by the banks and others affected by the instrument, where bank had not contracted to pay the money in the county in which the action was brought, and where the instrument did not require payment of money in such county and where the suit did not involve the title to land in such county, the bank’s plea of privilege should have been granted.</p>

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge.</p> <p>Action by Elmer W. Harris against Forest Collett and wife. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Distrit Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by one Juan Casas against Perry G. Lovenskiold and others. Plaintiff dying pending the action, his heirs were substituted in his stead. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Brazoria County; A. E. Masterson, Special Judge.</p> <p>Action by Norman K. Robb and others against Prank K. Stevens. Judgment for plaintiffs, and defendant appeals.</p>

R. Castle, Judge. ’ Suit by W. T. Dickson against Joe Waller and another, to recover the amount of deposit on a contract for the sale of land and the liquidated damages for breach of such contract. Judgment for plaintiff against the named defendant, and that defendant appeals.

<p>1. Guardian and ward <&wkey;!7 — Judgment appointing guardian held conclusive as to-matters showing that another should have minor’s custody.</p> <p>A judgment of the district court appointing a guardian of a minor which has been affirmed by the Court of Civil Appeals is conclusive as to matters set up in affidavits tending to show that other persons should have the custody of the minor at least for a short time, and such matters cannot properly be considered until the judgment is put into effect and the guardian has qualified.</p> <p>2. Appeal and error <&wkey;l2l7 — Court affirming judgment appointing guardian has jurisdiction to enforce it until proper proceedings taken in county court.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3639, 4050, 4080, 4083, and 4297, until a judgment of the district court, affirmed by the Court of Civil Appeals, appointing a guardian, has been certified to the clerk of the county court, filed, recorded, and docketed, and orders made by that court fixing the amount of the bond, approving the bond, appointing appraisers, and directing the issuance of letters of guardianship, the Court of Civil Appeals has jurisdiction, by proper process under article 1592, to require the execution of the judgment affirmed by it.</p> <p>3 Courts c&wkey;475(2, 3) — While proceedings for appointment of guardian were pending court of another county without jurisdiction to appoint temporary guardian and issue injunction.</p> <p>While proceedings looking to the appointment of a guardian for a minor instituted in the county court of F. county were still pending in the district court on appeal, the probate court of another county had no authority to appoint a temporary guardian or issue an injunction in aid of the jurisdiction illegally assumed.</p> <p>4. Guardian and ward &wkey;>29 — County court without authority to issue process to give guardian custody until guardian qualifies.</p> <p>Whatever writ or process a guardian may be entitled to under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4122, in order to obtain the ward’s custody, the county judge had no authority to issue a writ commanding the sheriff of another county to take the minor into custody and deliver her to the sheriff of the county oí the guardian’s appointment, until the guardian had qualified by filing bond and taking an oath under article 4110.</p>

Action by N. K. Smith against M. O. Danciger and others. Pleas of privilege of the named defendant and another were overruled, and they appeal.

<p>1. Jury &wkey;>25(6) — Statute requiring demand on appearance day is only directory as to appearance cases.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5175, declaring that any party to a civil suit desiring to have the same tried by jury shall make application therefor in open court on the first day of the term unless the same be an appearance case, in which event application shall be made on default day, is merely directory and not mandatory as to appearance cases.</p> <p>2. Contracts <&wkey;22l (3) — Promise to pay for merchandise furnished third person held not conditional.</p> <p>Though defendant, who agreed to pay for merchandise furnished to third person by plaintiff, asked that such person be held down and plaintiff agreed to do so, the promise was not thereby rendered conditional; the expression merely indicating a request that, plaintiff should discourage extravagant purchases by the person receiving the merchandise.'</p> <p>3. Appeal and error &wkey;o301 — -Sufficiency of evidence cannot bo reviewed where not raised by motion for new trial.</p> <p>Under Rule 101a (159 S. W. xi), governing the trial causes in the district court, which provides that in all eases in which a motion for new trial is filed the assignments contained therein shall constitute the assignments of error and all errors not specified shall be waived, the question of the sufficiency of the evidence to support the judgment cannot be reviewed where it was not presented by the motion for new trial original or amended, but was attempted to be presented by an independent assignment of errors filed after the overruling of the motion for new trial.</p> <p>4. Appeal and error <&wkey;l05l(3) — Admission of evidence as to matter concerning which appellant had testified harmless, if erroneous.</p> <p>Where plaintiff, who asserted that he did not agree to pay for merchandise furnished by defendant to a third person, testified that he agreed to pay for feed furnished by the witness to such third person, testimony by the witness as to plaintiff’s agreement, if erroneous, was harmless.</p> <p>5. Appeal and error <&wkey;l054( I) — Erroneous admission of evidence harmless in an action tried to the court.</p> <p>In an action tried to the court, the erroneous admission of improper or incompetent evidence will be deemed harmless, where it did not affirmatively appear that such improper and incompetent evidence influenced the court in reaching its judgment.</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and error <S==I046(I) — Denial of jury trial deemed reversible error, though bills of exception did not show deposit of fees.</p> <p>Where it appeared from the bills of exception that the trial court erroneously denied' jury trial on the ground that demand therefor was not made on the appearance day in accordance with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5174, 5175, which were merely directory, the case being' an appearance one, the action of the court will be deemed reversible error though the bills of exception did not affirmatively show deposit of jury fee, etc., in accordance with articles 5180, 5181, 5183.</p>

<p>Appeal from Haskell County Court; Jas. P. Kinnard, Judge.</p> <p>Action by the Jarrell-Evans Dry Goods Company against G. H. Smithee, W. C. Allen, and others. From a judgment against defendant Smithee, but in favor of the defendants Allen and Grissom, plaintiff appeals.</p>

D. Howe, Judge. Suit by Mary Eoasberry and husband against J. M. Daugherty and others. From judgment for plaintiffs, the named defendant appeals.

<p>1. Account stated &wkey;>8 — Account stated including items from illegal sale of liquor held conclusive.</p> <p>Where defendant, treasurer. of a lodge, agreed that each member of the association, after its dissolution, should share equally in the distribution of the funds in his possession, a suit therefor was on a stated account, and plaintiff was entitled to recover regardless of whether some portion of the fund was obtained by the association’s unlawful sale of liquor, and evidence thereof was inadmissible.</p> <p>2. Partnership <§=26 — Agreement to share profits or iosses cannot be impeached because accruing in illegal business.</p> <p>■ A contract to pay either profits or losses incurred in an illegal enterprise cannot be impeached by showing that the partnership enterprise in which such profits or losses accrued was illegal.</p> <p>3. Account stated <&wkey;>20( I) — Evidence held not conflicting on the issue as to there having been an accounting and agreement thereon between plaintiff and defendant.</p> <p>In an action by a member of an association against its treasurer, after dissolution, evidence held not conflicting as to accounting between defendant and the other members so that directing a verdict for plaintiff was not error.</p>

<p>1. Public lands <&wkey;l76(2) — Construction of grant for court.</p> <p>The construction of a grant as written is a question of law for the courts, unless some fact is raised.</p> <p>2. Public lands &wkey;> 175(1) — Evidence held to show survey was not on unappropriated land.</p> <p>In suit by the state and others to recover title to land on the theory that before its attempted appropriation the land was vacant and unappropriated land, evidence held to show that the land, prior to its attempted location, was appropriated public land, and that no vacancy existed, as claimed, between other surveys and the river bank, where such location might be made.</p> <p>3. Boundaries <&wkey;33 — Presumption favors surveys made as called for by field notes.</p> <p>The presumption is in favor of surveys that were made as called for by the field notes, and the burden is on the party attacking to show they were not so made.</p> <p>4. Boundaries <&wkey;6 — Land may be run in reverse direction if difficulty is met with in one direction.</p> <p>If in running lands in one direction a difficulty is met with, and all the known calls in the survey can be met with by running in the reverse direction, this may properly be done.</p> <p>5. Public lands <&wkey;>l76(2) — Patent carries prima facie rights.</p> <p>The patent carries with it the prima facie title to the land, and one attacking it must show a superior right.</p> <p>6. Public lands <&wkey;i75(l) — Patented lands cannot be relocated.</p> <p>Land described in a patent cannot be subject to future location.</p> <p>7. Boundaries <&wkey;3(4)— Calls for natural objects such as a river, prevail over call for artificial markers.</p> <p>Calls for natural objects, such as a river, do not yield to calls for artificial stakes or movable rocks or stones, in absence of evidence that there was no river at the place called for, or that there was a mistake in the call for the river.</p> <p>8. Boundaries <&wkey;3(4) — Location of survey by ' surveyor held improper.</p> <p>It was improper for a surveyor to begin from a corner and then undertake to locate a survey by course and distance only, ignoring all calls for natural objects, and when he reached a river to fail to run it with its meanders, but to regard only' course and distance, ignoring natural calls for the river.</p>

Action by Ira Brown, as guardian of and next friend for Lillian Brown and others, against the Independent Order of Puritans. Erom judgment for plaintiffs, defendant appeals.

M. Richey, Judge. Suit by E. B. Reed against B. M. Faulkner, for whom E. R. Faulkner, as administrator of his estate, and others, were substituted on his death. Judgment for plaintiff:, and defendants appeal.

<p>Appeal from District Court, Leon County; J. A. Platt, Judge.</p> <p>Action by the Perkins Dry Goods Company against H. K. Hickey, with plea of reeonvention by defendant. Judgment for plaintiff, and defendant appeals.</p>

Pearson, Judge. Action by J. W. Roberts against the Port Worth & Denver City Railway Company. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Wichita County Court; J. P. Jones, Judge.</p> <p>Action by O. J. Warden against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hunt County; Wm. Pierson, Judge.</p> <p>Action by Sidney J. Williams against the Gulf Befining Company. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Anderson County; John S. Prince, Judge.</p> <p>Trespass to try title by Charles Beason against Carey Ann Williams and others and certain unknown heirs, in which the defendants, other than the unknown heirs, filed a cross-action. From a judgment in favor of defendants on their cross-action, plaintiff having taken a nonsuit as to the main action, appeals.</p>

<p>1. Fraudulent conveyances <@=I72(2) — Cannot be set aside by grantor or his personal representative or heirs after his death.</p> <p>Where father conveyed land to a third person, who in turn conveyed it to a son, to defraud the father’s creditors, neither the father, or on his death his personal administrator or heirs, could have the deed to son set aside because of its fraudulent character; the deed being valid as to all persons except father’s creditors.</p> <p>2. Fraudulent conveyances <@=>24(1) — Owner may not create trust in favor of third persons to defraud creditors.</p> <p>An owner of land may not create a trust in favor of third persons to defraud his creditors.</p> <p>3. Evidence <9=383 (7) — Proof that consideration was paid unnecessary where hond for title recited receipt of cash consideration.</p> <p>Where bond for title recited receipt of cash consideration, it was not necessary to prove that the consideration named was actually paid.</p>

P. Dohoney, Judge. Suit by J. W. Shelton against F. J. Phillips and others. Judgment for defendants, and plaintiff appeals. Louis Andrews, owner of the land, divided it into lots and blocks, and platted it as an addition to the city of Greenville. The ap-pellee Phillips owns all the lots in block 3 except lots 5 and 6. Appellant owns lot 5, located in the southeast end of block 3.

<p>I.Judgment <&wkey;587 — Former judgment for possession of automobile not conclusive against action for conversion.</p> <p>Where plaintiff, not knowing that an automobile had been transferred to third persons» recovered a judgment for title and possession, such judgment is not a conclusive" adjudication against his right to maintain an action for conversion against such third persons to whom-the machine had been transferred, for res judicata arises and operates as a bar only as to matters directly in issue, or fairly within the scope of the pleadings.</p> <p>2. Election of remedies &wkey;>12 —Recovery of judgment for title and possession no bar to action of conversion.</p> <p>Where plaintiff, not knowing that an automobile had been transferred to third persons, recovered a judgment for title and possession, which was unsatisfied, he may thereafter maintain an action against such third persons and the original parties for conversion of the automobile, for as the first judgment was not satisfied and the remedy sought was unavailing, there was no election of remedies which would estop him from seeking relief by way of an action of conversion.</p> <p>3. Election of remedies <&wkey;l5 — Pursuit of one will not exclude alternative remedy until satisfaction is had.</p> <p>Where remedies were alternative and concurrent and not inconsistent, the pursuit of one will not exclude the other until a satisfaction is had.</p> <p>4. Election of remedies <&wkey;l2 — Situation after judgment, rendering it unavailing, will not preclude further proceedings.</p> <p>Where after judgment for title and possession of an automobile plaintiff discovered that it had been transferred to third persons, and his judgment was unavailing, a new legal situation having arisen, an action for conversion cannot be defeated on the theory of the election of remedies.</p>

<p>Appeal from District Court, Newton County; J. T. Adams, Judge.</p> <p>Action by Mrs. Maggie Scurlock and others against the iKirby Lumber Company. From’ judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Lamar County; A. P. Doboney, Judge.</p> <p>Suit' by S. W. Gose and another against George A. Brooks. From judgment for defendant, plaintiffs appeal.</p>

<p>1. Appeal and error >@=>731 (I) —Assignment that verdict is contrary to evidence held insufficient.</p> <p>An assignment of error that the verdict is contrary to the evidence is too general and does not distinctly specify the grounds relied upon and cannot be considered under Rules 25 and 26 for Courts of Civil Appeals (142 S. W. xii.)</p> <p>2. New trial >@=>128(5) — Ground of motion asserting that verdict is contrary to evidence need not be considered.</p> <p>Under Rule 6S for district courts (142 S. W. xxii), the trial court was justified in disregarding a ground of a motion for a new trial asserting merely that the verdict was contrary to the evidence.</p> <p>3. Appeal and error >@=>742(5) — Assignment of error to refusal of charge held defective for want of proposition.</p> <p>An assignment of error complaining of the refusal of a special charge, and followed by a statement that the testimony disclosed that the person with whom plaintiff contracted was not defendant’s agent, was defective under Rules 29 and 30 for Courts of Civil Appeals (142 S. W. xii, xiii), where it was followed by no proposition, since an assignment not itself a proposition and not followed by a proposition is waived.-</p> <p>4. Appeal and error >@=>742(5) — Statement under assignment to refusal of instruction referring to entire testimony held insufficient.</p> <p>A statement under an assignment of error to refusal of instruction, asserting that the testimony disclosed a certain fact followed by a reference to the entire statement of facts, was not sufficient under Rule 31 for Courts of Civil Appeals (142 S. W. xii) to entitle the assignment to be considered.</p> <p>5. Appeal and error >@=>742(4) — Proposition held not to raise question of agency of party writing letters, but question of proof that he wrote them.</p> <p>A proposition under an assignment of error asserting that letters against the interest of the party are not admissible against him unless the proof shows, or tends to show, that they were written by him or by some one shown to be authorized by him to write them, does not raise the question that the apparent writer was not appellant’s agent, but rather that the execution of the letters by the party purporting to sign them was not proved.</p> <p>6. Evidence >@=>261 — Agency of party writing letters offered is question of .fact.</p> <p>The question whether the party writing letters offered in evidence against defendant was its agent was one of fact to be established by evidence.</p> <p>7. Evidence >@=>378(1) — That tetters were written by apparent writer must be proved, but may be proved by circumstances.</p> <p>While the signature of the party writing a letter must be proved or its execution established before it is admissible in evidence, this may be done circumstantially, and, when the circumstances indicate that it is the letter of the party purporting to write it, the court may admit it.</p> <p>8. Evidence >@=>378(1) — Admission of letters held not error for want of sufficient evidence</p> <p>. that they were written by apparent writer.</p> <p>The Court of Civil Appeals held not authorized, under the evidence, to say that there was not sufficient evidence to establish the execution of letters by the party purporting to-write them to admit them in evidence.</p> <p>9.' Principal and agent >@=>194(1) — Where both were sued, instruction not to consider alleged agent’s letters unless he was agent held properly refused.</p> <p>Where buyer’s action for breach of a contract for sale of trucks was brought against the manufacturer and his alleged agent, an instruction that, unless the jury found that he was the manufacturer’s agent, letters written by him should not be considered, was properly refused, as it would have been error to charge that they could not be considered in determining the agent’s liabilty.</p> <p>10. Appeal and error >@=>1067 — Requested instruction not to consider letters unless jury found agency held immaterial, where question of agency not.submitted.</p> <p>In buyer’s action against a, manufacturer and its alleged agent for breach of a contract for the sale of trucks, where the court did not submit the question of agency to the jury and. was not requested to do so, but evidently determined that question from the contract in evidence, a charge not to consider certain letters written by the alleged agent, unless he was found to be the manufacturer’s agent, would have been immaterial and its refusal was not error.</p> <p>11. Trial >@=>351(2) — Special issue as to damages substantially correct not error in absence of request.</p> <p>In an action for breach of a contract for the sale of trucks purchased for resale', a special issue as to the amount of damages, in which it was stated that the damages would be the difference between the contract price and the net price for which the trucks would have been sold if plaintiff would have sold them, was substantially correct and not erroneous on the ground that plaintiff could not recover any damages which he could have diminished or prevented, as defendant should have prepared a proper issue presenting that question.</p> <p>12. Damages >@=>163(2) — Burden on defendant to show damage could have been prevented by plaintiff.</p> <p>One occasioning loss to another has the burden of showing that the complainant could have prevented the loss by reasonable care.</p> <p>13. Sales <S=o4I8(7) — Buyer not required to reduce damages by accepting offer which required waiver of damages.</p> <p>Where a manufacturer refused to deliver four trucks sold unless the buyer would pay a new and increased price, the buyer was not required to reduce Ms damages by accepting an offer of the seller’s agent to let him have two trucks at the old price, where he would have waived his right to damages by taking such trucks.</p>

<p>1. Boundaries <&wkey;8 — Rule for determining location of land by lines of survey as actually-run applicable only where actual survey can. be found and identified.</p> <p>The rule that the location of a tract of land must be determined by the lines of the survey as actually run and marked on the ground is-only applicable where the actual survey can be found and identified as the same called for in the grant.</p> <p>2. Evidence <&wkey;460(6) — Parol evidence inadmissible to vary calls not inconsistent nor ambiguous.</p> <p>When the calls are not inconsistent and: no ambiguity arises when they are applied to-the subject-matter of the description, the instrument speaks for itself, and parol evidence-is not permissible to vary the calls.</p> <p>3. Public lands &wkey;l75(i/2) — When survey not part of block or system of surveys stated.</p> <p>That surveys are made by the same survey- or in the same month, and that most of them call for each other, do not place them in the category of a block or system of surveys, when, made for different owners of certificates, and' none of them are described as one of a block, or system of surveys.</p> <p>4. Evidence <&wkey;23(2) — That surveys under alternate script issued as bonus to railway companies were rarely run on ground held, matter of common knowledge.</p> <p>It is a matter of common knowledge that surveys located under alternate script issued as-a bonus to railway companies were located in. larger blocks and rarely, if ever, were the-lines of each, survey actually run on the ground, the method usually followed being to run a base line for an entire block, and on this-line plat a system of 640-acre surveys.</p> <p>5. Boundaries <§=»ll — Location of survey under unambiguous field notes may not be moved because surveys adjoining those which adjoin it conflict with older grants.</p> <p>Where the unambiguous field notes of a survey definitely place it in a certain location, it cannot be moved merely because some of the surveys adjoining those which adjoin it conflict with older grants.</p>

Error and Appeal from District Court, East-land County; W. W. Beall, Special Judge. Actions between T. E. Barefield and Mrs. L. A. Basham and others, and between the Gulf Production Company and Mrs. L. A. Basham and others, were consolidated. From the judgment rendered, the Gulf Production Company appeals, and T. E. Barefield brings error.

<p>Appeal from Brown County Court, R. E. Lee, Judge.</p> <p>Action by Ratliff & Evans against the Fort Worth & Rio Grande Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Dallas County Court at Law; T. A. Work, Judge.</p> <p>Lawrence Elam was convicted of aggravated assault, and he appeals.</p>