Volume 230 — South Western Reporter

<p>1. Appeal and error <&wkey;l 002 — Finding on conflicting evidence supported by positive testimony not disturbed.</p> <p>A jury finding of the execution and delivery of a lost deed, when supported by positive and unequivocal testimony and other evidence tending to show such execution and delivery, cannot be disturbed, though there are many circumstances strongly controverting such testimony.</p> <p>2. Trespass to try title <&wkey;>39(l) — Finding that claimant of full title did1 not file or authorize filing deed to timber only held warranted.</p> <p>Evidence hold to sustain a finding of the jury that one claiming land under a lost deed and claiming that he refused to accept a deed to the timber alone did not file the timber deed with the county clerk or authorize any one else to file it.</p> <p>3. Estoppel <&wkey;l5 — Grantee not accepting deed not estopped to deny that he was holding thereunder.</p> <p>Where a timber deed was not accepted by the grantee, and, though filed in the county, clerk’s office, was not filed by him, and he did not authorize any one to file it, he was not es-topped, as against persons who saw such deed on file, to deny that he was holding under such deed.</p> <p>4. Estoppel <&wkey;!5 — Nonaccepting grantee held not charged with constructive knowledge of filing.</p> <p>One refusing to accept a timber deed and obtaining a deed to the land which was not recorded and was subsequently lost was not charged with constructive knowledge of the unauthorized filing of the timber deed by some one else.</p> <p>5. Vendor and purchaser <&wkey;23l (4) — Grantee not charged with constructive knowledge of grantor’s subsequent conveyance.</p> <p>The grantee of land was not charged with constructive knowledge of a subsequent conveyance of the land by the grantor to a third person.</p> <p>6. Estoppel <&wkey;70(I) — Payment of taxes held to raise no issue of estoppel between grantor and grantee of timber.</p> <p>Where A., having an unrecorded deed to land, sold the timber, and persons claiming under the timber deed acquired a deed to the land from one having a subsequent conveyance from A.’s grantor, the failure of A. to. pay taxes and their payment by the persons claiming under the timber deed raised no issue of estoppel against him.</p> <p>7. Vendor and purchaser <&wkey;229(2) — Grantees of timber not innocent purchasers of title to land adverse to their grantor.</p> <p>An unrecorded deed to A., who sold the timber on the land, was in the chain of title of persons claiming under the timber deed, and a timber deed to A. which he had refused to accept was not in their chain of title, and they were therefore not innocent purchasers of an outstanding claim to the land under a subsequent conveyance from A.’s grantor.</p> <p>8. Evidence &wkey;>l86(2) — Testimony that lost instrument was a deed held properly admitted.</p> <p>In proving a lost deed, it was not error to permit witnesses to testify that the instrument executed was a deed, though they did not give the language of the instrument, where they testified that it described the land in controversy, and two of the witnesses were lawyers, one of whom wrote the instrument, and the grantors testified that they did not afterwards claim the land.</p> <p>9. Trial <&wkey;350(3) — Issue whether plaintiff would have told defendants of interest in land on inquiry held properly rejected.</p> <p>In trespass to try title to land conveyed by unrecorded deed to A., who conveyed the timber thereon to persons subsequently purchasing the land from one claiming under a subsequent conveyance by A.’s grantor, the court properly refused to submit a question as to whether A. would have told defendants of his interest on inquiry, though he testified that he had forgotten he owned the land, as he did not lose the land by forgetting that he owned it.</p> <p>10. Vendor and purchaser <&wkey; 102 — Contract held not repudiated or rescinded so as to give good title under subsequent deed.</p> <p>Purchasers of land from the state who had not received a patent conveyed to A. by unrecorded deed, and he conveyed the timber to one who conveyed to a lumber company. A.’s grantor subsequently executed another deed, and the lumber company acquired the title thereunder. The lumber company assumed and paid the purchase-money notes executed by A. and paid the balance due the state. A.’s grantor received a patent while the lumber company was claiming the land. Held, that there was no repudiation or rescission of the executory contract between A. and his grantor defeating A.’s title to the land.</p> <p>11. Abatement and revival <&wkey;4l — Parties &wkey;> 51 (5) — Conveyance pendente lite by land claimant does not abate suit or make grantee a necessary party.</p> <p>A conveyance of part of the land by plaintiff pending a suit in trespass to try title did not abate the suit as to the land conveyed or make the grantee a necessary party to the litigation.</p> <p>12. Acknowledgment &wkey;s5 — Unnecessary when execution proved as at common law.</p> <p>Whether a lost deed was duly acknowledged by the grantor was immaterial where the execution was proved as at common law.</p> <p>13. Homestead <&wkey;l25 — Husband’s deed conveyed community interest except homestead claim.</p> <p>A deed from a man in which his wife did not join conveyed to the grantee all the community interest in the land except the homestead claim.</p> <p>14. Homestead t&wkey;l3l — Insufficient conveyance held repudiated by subsequent conveyance.</p> <p>Where a conveyance by a husband and wife of land in which they had a homestead was not duly acknowledged by the wife, the execution and delivery of a subsequent deed while they were still on the land and had acquired no other homestead was a repudiation of the attempted sale to the first grantee.</p> <p>15. Appeal and error &wkey;891 — Evidence first offered on appeal not considered.</p> <p>The Court of Civil Appeals is without authority to consider evidence offered for the first time in that court affecting the issues passed on by the jury.</p>

<p>Error from District Court, Williamson County; Ireland Graves, Judge.</p> <p>Suit by Inez Franklin and others against J. D. Bell and wife.</p>

<p>Appeal from District Court, Parker County ; F. O. McKinsey, Judge.</p> <p>Suit by the Carleton-Ferguson Dry Goods Company against Mrs. Carrie E. McFarland and others.</p>

<p>1. Insurance <&wkey;825(2) — Court should not give peremptory instruction where evidence conflicted as to insured’s health when policy was delivered.</p> <p>In an action on a life policy of .a benefit association, where the evidence as to whether insured had tuberculosis at the time of the delivery of the policy was conflicting the trial court would not have been warranted in giving a peremptory instruction to find for defendant insurer as to the matter of misrepresentations by insured that he was in good health.</p> <p>2. Insurance <&wkey;723(6) — Applicant’s false statement as to medical attendance avoids liability unless waived.</p> <p>Where insured’s statement, made in his application for the policy, with reference to previous consultation of physicians, was false, the falsity of such statement avoids the liability of defendant benefit association, unless the defense was waived, or defendant association is estopped from assorting it either by requiring additional proofs or in its statement of the grounds for rejection of the claim.</p> <p>3. Insurance <&wkey;-755 (I) — Requirement of, additional proof of loss not waiver of misrepresentation in application.</p> <p>Defendant benefit association’s requirement of additional proof of loss was not a waiver of misrepresentation by insured as to previous consultation of physicians, where the association had no knowledge at the time of calling for the additional proof that such representation in the application was false.</p> <p>4. Insurance <&wkey;755(I)— Provision that demand for proofs of loss is not waiver of defense held valid.</p> <p>Provision in an insurance contract issued by a benefit association that a demand for proofs of loss or additional proofs should not be considered a waiver is valid, and prevents such act from having any such effect.</p> <p>5. Insurance &wkey;>755(l) — Association not es-topped from asserting defense of misrepresentation.</p> <p>Defendant bénefit association sued on its policy of life insurance held not to have waived, and not to be estopped from asserting, the defense of misrepresentations by insured as to previous consultation of physicians, by statements made in its letter of rejection of claim.</p>

B. Keith, Judge. Suit by T. J. McClure and others against Maud Cunningham and others. Prom an order dissolving the temporary injunction, plaintiffs appeal. Affirmed.

L. Davenport, Judge. Action by the Parry Oil Company against Mike Michaels and others. From a judgment dissolving the temporary writ df injunction granted, plaintiff appeals.

<p>1. Appeal and error &wkey;> 1001 (I) — Verdict supported by evidence will not be disturbed.</p> <p>Special finding by the jury, which was determinative of the rights of the parties, being supported by evidence, will not be disturbed on appeal.</p> <p>On Motion for Rehearing.</p> <p>2. Appeal and error <&wkey;1122(3) — Verdict being supported by evidence, appellate court will not find evidentiary facts.</p> <p>Where the Appellate Court found that a special verdict was supported by the evidence, it need not find evidentiary facts.</p>

<p>Appeal from District Court, Parker County; P. O. McKinsey, Judge.</p> <p>Action by L. O. Harris against Susie Harris. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by E. Remington against Ben I. Butler and others. From a temporary injunction granted plaintiff, defendants appeal.</p>

Error from Tarrant County Court; W. P. Walker, Judge. Action by E. A. Officer against A. R. Curt-ner and another, with attachment. The P. & M. National Bank of Hobart, Okl., had judgment on ite claim of the attached property, and plaintiff brings error.

Error from Tarrant County Court; W. P. Walker, Judge. Action by Marshall H. Smith against C. C. Rhodes and another to recover damages for failure to deliver a carload of hay. Judgment for plaintiff against defendants, and they bring error.

E. B. Roy, Judge. Action by Continental Supply Company against J. H. Latham and another, in which the named defendant filed plea of privilege. From judgment overruling the plea, the named defendant appeals.

R. Pearman, Judge. Action by J. A. Cooper and wife against G. J. Casselberry. From a judgment dismissing the action on their refusal to amend after the sustaining of demurrer to the petition, plaintiffs appeal.

<p>1. Officers <&wkey;82 — Quo warranto <&wkey; 10 — Injunction not invoked to try right to office, but to restrain interference with officer.</p> <p>Injunction cannot be invoked to try the right to an office, provision being made in Rev. St. 1911, art. 6403, for ouster of any intruder into or usurper of any office through an information in the nature of quo warranto, but injunction will lie in a proceeding by one elected precinct weigher and in possession of the office against one unlawfully claiming to hold another office which authorizes him to discharge the duties of weighing in the precinct conjointly with plaintiff and collect fees for labor performed by him.</p> <p>2. Officers &wkey;>82 — District court had jurisdiction of action to enjoin interference with plaintiff’s possession of office.</p> <p>District court had jurisdiction of an action by public weigher of a precinct to enjoin one, claiming to hold another office which gave him the right to weigh in the precinct and receive fees therefor, from interfering with the former’s possession of his office.</p> <p>3. Weights and measures <&wkey;2 — Statute as to public weighers held repealed.</p> <p>The law of 1883 applying to public weighers as embodied in Sayles’ Ann. Giv. St. 1897, art. 4308, was repealed by Acts 1899, c. 155.</p>

<p>1. Carriers i&wkey;l4 — Company may' confer the right to solicit business on its grounds on one transfer company and exclude other hacltmen from such privilege.</p> <p>A railroad company may confer on a particular company the exclusive privilege of having its hack stand on the company’s ground and soliciting business there, and may exclude by injunction other haekmen intruding thereon for the purpose of soliciting transportation of passengers and baggage, where they are not prevented from entering the premises and transporting any individuals with whom they had previous contracts.</p> <p>2. Monopolies ®=»I6( 1) — Carrier granting exclusive privilege to solicit transfer of passengers and baggage held not a monopoly.</p> <p>A railroad company’s granting the exclusive privilege to one company to solicit transfer of passengers and baggage on, its own grounds and exclusion of others hold, not in contravention of the rule against monopolies or in violation of anti-trust statutes (U. S. Comp. St. §§ 8820-8823, 8827-8830).</p> <p>3. Carriers &wkey;>l4 — Right to grant exclusive' privilege of soliciting transfer of passengers and baggage on railroad grounds not affected by city ordinance.</p> <p>The right of a railroad company to grant exclusive privilege to one company to solicit transfer of passengers and baggage upon its own grounds was not affected by a city ordinance attempting to establish hack stands and provide other regulations relating to the subject, since the city’s authority under the statute could extend no further than to its streets and public ways'and to regulations, if any necessary, tending to afford travelers with sufficient accommodation; there being no claim of any insufficiency in this case.</p>

<p>1. Mines and minerals &wkey;>78(2) — “Drilled” well in oil lease, providing therefor to avoid forfeiture, held to mean completed well.</p> <p>Lessee in an oil lease, agreeing “to drill the fourth well drilled in C. F. field on these lands or forfeit contract,” would comply with his contract by completing a well on lessor’s land prior to finishing a fourth one on other lands, the word “drilled” being the past participle of the verb and meaning “completed,” and it would be immaterial that more than three wells had been previously started on other lands.</p> <p>2. Evidence <&wkey;452 — Latent ambiguity in oil lease warranting proof of intention.</p> <p>There was a latent ambiguity in an oil lease providing that lessor “drill the fourth well drilled in C. F. field on these lands or forfeit contract,” and evidence was competent to show whether it was the intention of the parties that the well should be the fourth one drilled by the lessee or the fourth well drilled by any one in the field.</p> <p>3. Contracts &wkey;> 170(1)— Practical construction given contract to control.</p> <p>The practical construction deliberately given a contract containing a latent ambiguity by both parties should control its interpretation.</p> <p>4. Contracts &wkey;> 147(1) — Primary rule of construction is to ascertain intention of parties at the time.</p> <p>In all rules of construction of contracts, the dominant purpose is to ascertain, if it be possible, what was in the minds of the parties to the contract at the time it was made.</p> <p>5. Contracts &wkey;G5 — Assent must be to the same subject-matter.</p> <p>There is no contract unless the parties thereto assent to the same.thing in the same sense.</p> <p>6. Contracts <&wkey;l69 — Circumstances may be looked to.</p> <p>In the ascertainment of the meaning of terms used, the situation of the parties and of the subject-matter at the time and the acts and declarations of the parties may be looked to.</p> <p>7. Contracts &wkey;>(43 — To call for construction words used need not themselves be ambiguous.</p> <p>For a contract to call for construction, it is not necessary that the words to be interpreted shall be themselves ambiguous.</p> <p>8. Contracts <&wkey;l55 — Words construed against party using them.</p> <p>A party will be held to that meaning which he knew the other party to the contract supposed the words to bear.</p> <p>9. Mines and minerals <S=^78(7) —Action to cancel oil lease held premature.</p> <p>An action to cancel an oil lease, by reason of lessee’s failure to comply with its agreement “to drill the fourth well drilled in O. F. field on these lands or forfeit contract,” was prematurely brought, where more than three wells had been started on other lands, but not more than three of them had been completed.</p>

L. Manry, Judge. Suit by H. O. Compton against Ross Babno. From the overruling of his plea of privilege to be sued in the county of his residence, the defendant appeals.

Proceeding to probate will of John L. Jackson, deceased, by George B. Warne, contested by Robert I. Jackson and another. From an order of county court denying probate, proponent appealed to the district court, and from judgment of district court, adjudging contestants ' qualified to contest probate, and from a judgment denying probate of the will, the proponent separately appeals.

<p>Banks and banking <&wkey;!48(3) — Drawer of draft waiving identification of payee liable, though wrong person was paid.</p> <p>A telegraph company issuing a draft or order, in effect waiving identification of the payee, by indorsement of its authorized agent that payee was identified by him, is liable to bank paying it, whether or not the person presenting it and indorsing it was the payee.</p>

<p>1. Nuisance <&wkey;3(11) — Garage in residential district enjoined.</p> <p>The construction and operation of a garage in a section of the city in which such a business has never been carried on, and which has been used exclusively for residential purposes, where the establishment and operation of the garage will seriously injure the health of the residents, impair the value of their properties, increase the fire risk of such properties, and render the vicinity undesirable as a residential district, will be enjoined.</p> <p>2. Appeal and error <&wkey;850(!) — Issues raised by testimony resolved in support of judgment in absence of specific findings.</p> <p>In the absence of specific findings of fact, every issue raised by the testimony must be resolved in support of the judgment.</p> <p>3. Nuisance <&wkey;3(l I) — Garage not a nuisance per se.</p> <p>A garage is not a nuisance per se, but may become one when established and operated in a strictly residential section.</p>

P. Hoff, Judge. Action by S. T. Howe against J. H. Haynes. Verdict and judgment for plaintiff for recovery of an automobile and for writ of possession, and the defendant appeals by super-sedeas bond.

<p>Appeal from Tarrant County Court; W. P. Walker, Judge.</p> <p>Action by the Texas Pipe Line Company against Dr. W. C. Huddleston and another. From a judgment for plaintiff, > defendants appeal.</p>

<p>Appeal from District Court, Tarrant County; R. É. L. Roy, Judge.</p> <p>Suit by C. E. Wiggins against C. A. Tiller. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County; W. C. Kimbrough, Special Judge.</p> <p>Action by C. H. Blewett against the Richardson Independent School District and others. Judgment for defendants, and plaintiff appeals.</p>

<p>I.Escrows —Evidence held to show no de-</p> <p>livery of a lease through a depositary. Evidence that the lessor delivered a lease to the lessee to "be deposited in a bank in | escrow, that the lessee delivered it to a different bank, and did not fulfill the conditions of the proposed escrow agreement, and that the depositary kept the lease until lessor sued to cancel, when it delivered the lease into court, entitled the lessor to a directed verdict on the issue of delivery.</p> <p>2. Escrows <&wkey;3 — Delivery must be made to third person.</p> <p>Generally an escrow delivery must be made to a third person.</p> <p>3.-Deeds <&wkey;56 (2)— Handing of instrument to grantee for inspection is not delivery.</p> <p>The mere handing of a deed to a grantee for inspection does not amount to a delivery, for intention is the essence of delivery.</p> <p>4. Deeds <&wkey;56(I) — Transmission to grantee for delivery to depositary not delivery.</p> <p>Where a deed was handed to grantee to be transmitted to a depositary, who was to hold the same in escrow, there was no delivery.</p> <p>5. Deeds <&wkey;64 — Acceptance is necessary to make delivery effective.</p> <p>An acceptance is necessary to make a delivery effective.</p>

M. Marshall, Judge. Suit by Louis Tobian against the W. T. Wilson Grain Company.

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Suit by the Blair & Hughes Company against U. E. Short. From judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and error <&wkey; 1067 — Refusal of instruction on matter not, controverted not reversible error.</p> <p>Where the evidence was undisputed that certain brokers were the special agents of defendant to sell his cotton, the only issue being how long their authority continued, the court did not materially err in refusing to instruct, at plaintiff’s request, that a person may constitute another his agent for the sale of goods by verbal authority.</p> <p>2.'Appeal and error &wkey;73l (I) — General assignment of error not considered.</p> <p>An assignment of error that “the verdict of the jury is contrary to the law and the evidence, and therefore should have been rendered for plaintiff” (appellant), is too general to be considered.</p> <p>3. Appeal and error <&wkey;l97(l)— Objection of variance cannot be first raised on appeah</p> <p>Where the bill of exception taken to the admission of testimony does not show that its admission was objected to on the ground that there was no pleading authorizing it, such objection cannot be first raised on appeal.</p> <p>4. Customs and usages &wkey;>15— Office of usage is to explain contracts.</p> <p>The office of a usage is to interpret the otherwise indeterminate intentions of parties, to understand the nature and extent of their contracts, and to fix and explain the meaning of words and expressions of doubtful or various senses.</p> <p>5. Customs and-usages <&wkey;l6 — Cannot add new terms by usage.</p> <p>When a contract is clear and complete, new terms cannot be added by usage.</p> <p>6. Customs and usages <&wkey;>l7 — Custom as to time of closing contracts not objectionable as varying contract.</p> <p>Where contract under which broker was to sell cotton for defendant did not limit the time in which the sale was to be made, delivery made of the cotton, and the transaction closed, evidence was admissible of a custom among cotton buyers that a trade for the purchase and sale of cotton shall be closed by 8 o’clock in the evening of the day when made, as such custom would not be inconsistent with or vary any term of the contract.</p> <p>7. Customs and usages <&wkey;>16 — Admissible when contract is incomplete.'</p> <p>Where a contract is not in itself a complete expression of the intention of the parties, valid and known usages, if not inconsistent with the express terms, are admissible to supply matters as to which the contract is silent.</p>

<p>Appeal from District Court, Hills County; E. M. Spann, Judge.</p> <p>Action by Mrs. M. E. James against the Sovereign Camp, Woodmen .of the World. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trusts ©=577 — Money must be paid when deed is taken.</p> <p>A resulting trust in land must result, if at all, at the time deed is taken and the legal title vests in the grantee, and no oral agreement and no payment made before or after the title is taken will create it.</p> <p>2. Trusts ©=>63% — Resulting trust must result from transaction itself.</p> <p>A resulting trust will not exist unless the transaction is such at the moment the title passes that the trust will result from the transaction itself, and one who has paid no money or had none paid on his account, either actual or constructive, cannot claim a resulting trust.</p> <p>3. Trusts ©=570 — Resulting trust implied only where consistent with intention.</p> <p>A resulting trust will be implied only where it is consistent with the intention of the parties at the time of the acquisition of the property.</p> <p>4. Trusts ©=63% — When conveyance to one to hold for another creates resulting trust.</p> <p>Where the conveyance is made to one person, the mere fact that he has agreed to purchase or hold it for another, who has not paid anything or only a small part of the purchase price, does not create a resultant trust in the latter’s favor, or where it does not appear that any valid consideration was given for such agreement.</p> <p>5. Trusts ©=566 — Resulting trust does not result, where there is agreement to hold property on different trust.</p> <p>Where an agreement is made at the time of the transaction to hold property on a different trust from that which would arise by implication of law, a resultant trust will not arise.</p> <p>6. Trusts ©=563% — Trust held not created under agreement in favor of plaintiff in oil lands taken over.</p> <p>Where ten men and plaintiff contributed property to organize a company, and the 10 other than plaintiff were to be trustees, and plaintiff was to have a 5 per cent, interest in the business, and one of the trustees purchased an option on oil lands, the 10 trustees giving a note in payment, which plaintiff was not required to sign or indorse, and several of the trustees attempted to raise money to purchase the lands, but were unable to do so, and later the trustee in whose name the option stood, along with others, organized a corporation which took over the oil lands, no trust resulted in favor of plaintiff under his agreement, none of his property or interest in any way inducing the new corporation, which paid the option note when due, to advance the money to purchase the land, even though the company was incorporated upon a conspiracy to squeeze out plaintiff’s interest; the contingency upon which his interest vested never having happened.</p> <p>7. Corporations '<g=»30(I)— Corporation not liable for fraud of organizers.</p> <p>A corporation would not be liable to plaintiff in damages occasioned by its organizers wrongfully inducing or persuading the breach of a contract by persons who had agreed to purchase lands in a venture in which plaintiff was to have an interest, even though such organizers are liable in damages for such wrong.</p> <p>8. Corporations <§p»397, 428(6) — Corporation charged with acts or knowledge of principal officers.</p> <p>A corporation is charged with the acts or knowledge of its principal officers in transactions after its organization.</p>

<p>Appeal from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Suit by C. S. Otto against L. M. Faulkner. Judgment for plaintiff on directed verdict, and defendant appeals.</p>

<p>1. Judgment <&wkey;217 — Judgment in action between partners held a full and final adjudication of all matters involved.</p> <p>Where plaintiff in petition sought to secure a dissolution of a partnership, which he alleged existed between him and the defendant, and which he charged that defendant had repudiated, and a determination that plaintiff was entitled to one-half of the assets, and, before plaintiff applied for a receiver, defendant demanded a trial of the question of partnership before a jury, a judgment rendered, declaring the existence of- a partnership and dissolution of the partnership, and that plaintiff was the owner of an undivided one-half interest, and appointing a receiver to take charge of the property, held a fulLand final adjudication of all the matters involved in the litigation.</p> <p>2. Appeal and error <&wkey;930(3) — Presumed that issues not submitted were found in support of judgment.</p> <p>A cause having been submitted on special issues, it will be presumed on appeal that every issue of fact necessary to support the judgment and not submitted or requested to be submitted was found by the .trial court, where such finding is supported by the evidence.</p> <p>3. Appeal and error <&wkey;548(2) — That judgment was not supported by evidence not considered in absence of statement of facts.</p> <p>Where there is no statement of facts in the record, appellant is in no position to say that the judgment was not supported by the evidence.</p> <p>4. Partnership <§==325(2) — On dissolution, court might appoint receiver to sell property and divide proceeds.</p> <p>A court in dissolving a partnership, and fixing the rights of the parties in the partnership property, had the right to appoint a receiver to carry out the judgment by a sale of the property and division of the proceeds.</p>

<p>Appeal from District Court, Stephens County ; W. R. Ely, Judge.</p> <p>Suit by J. II. Speer and others against E. J. Tholl and others. Judgment for plaintiffs, and defendants appeal.</p>

Error from District Court, Limestone County; A. M. Blackman, Judge. Suit by H. R. Dyer against W. Frank Burns and others. To review the judgment against him in favor of plaintiff and another, defendant Burns brings error.

<p>Appeal from District Court, Potter County; Henry S. Bishop, Judge.</p> <p>Suit by Arthur Osgood against J. G. Colby. Prom an order granting a mandatory injunction on a preliminary hearing, the defendant appeals.</p>

<p>1. Master and servant <&wkey;4l9 — Compensation terminable on showing injury healed.</p> <p>The power rests with the Industrial Accident Board to terminate .compensation for. an injured employé at any time on a showing that his injury had healed.</p> <p>2. Master and servant <&wkey;385(20)— Commutation of compensation without board’s approval void.</p> <p>Under Workmen’s Compensation Act, pt. 1, §§ 14, 15, 18, pt. 2, § 12, it was the intention of the Legislature to provide for compensation in weekly payments with certain definite exceptions to be approved by the Industrial Accident Board, and to make void a contract by a beneficiary to commute his compensation to a lump sum without the board’s approval.</p> <p>3. Master and servant <&wkey;396 — Justice court without jurisdiction of lump sum settlement under Compensation Act.</p> <p>Under Workmen’s Compensation Act, pt. 1, §§ 14, 15, 18, pt. 2, § 12, the justice court did not have jurisdiction to try the issue of a lump sum settlement by a compensation insurer with an injured employé; the amount involved exceeding the jurisdiction of the court.</p> <p>4. Master and servant &wkey;>396 — Courts without jurisdiction to decree lump settlement under Compensation Act.</p> <p>Under the general jurisdiction of courts of the state they have no power to decree lump settlements in favor of injured employés under the Workmen’s Compensation Act.</p> <p>5. Justices of the peace &wkey;>!29(3) — -Decree does not foreclose inquiry as to jurisdictional facts.</p> <p>The decree of a justice court does not foreclose a subsequent inquiry into jurisdictional facts.</p> <p>6. Justices of the peace @=>130 — Court must have jurisdiction of parties and subject-matter for judgment to be res adjudicata.</p> <p>For the judgment of a justice court to be res adjudicata of the issues submitted to it, such court must have jurisdiction both of the parties and of the subject-matter.</p> <p>7. Master and servant @=>411— Judgment for lump sum settlement held no estoppel in favor of compensation insurer.</p> <p>No estoppel arose in favor of a workmen’s compensation insurer against an injured em-ployé who agreed to accept a lump sum settlement, the employé, having been without power to contract in the premises, as the insurer knew, and the justice court which rendered judgment for such a lump sum settlement having been without jurisdiction to hear and determine the issue.</p>

H. Arnold, Judge. Trespass to try title by Claud L. McGowan against J. H. Lowry and another. From judgment that plaintiff recover nothing as against the defendants and that the named defendant have affirmative judgment against plaintiff for the land described, plaintiff appeals.

<p>Appeal from District Court, Stephens County; W. R. Ely, Judge.</p> <p>Action by A. J. Mason against J. B. Hood and another. Judgment for named defendant, 'and plaintiff appeals.</p>

<p>Justices of the peace <®=^72 — Venue of action on contract of sale and purchase not within exception.</p> <p>Rev. St., art. 2308, subd. 4, providing, in exception to the rule that action in a justice’s court shall be commenced in the county and precinct in which defendant resides, that action on a written contract promising performance at any particular place may be brought in the county and precinct in which the contract was to be performed, has no application to an action on a contract of sale and purchase for the value of the articles.</p>

<p>Error from District Court, Dallas County; Kenneth Eoree, Judge.</p> <p>Suit by Gross R. Scruggs & Co. against James R. Chapman and others. To review the judgment, defendants bring error.</p>

. Appeal from District Court, Hale County; R. 0. .Toiner, Judge. Action by Mrs. Dollie Fletcher and P. G. Fletcher, her husband, against’ the Royal Neighbors of America and another. From a judgment for plaintiffs, the named defendant appeals.

Action by John M. Rhoades against the El Paso & Southwestern Railway Company. Judgment for defendant, and plaintiff brings error. ' Plaintiff applied for mandamus to require the judge to file a bill of exceptions tendered by him, and defendant moved to dismiss writ of error and strike out portion of the record.

<p>Appeal from District Court, Harris County ; W. E. Monteitb, Judge.</p> <p>Suit by V. M. Duke and wife against John S. Stewart and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Action by T. C. Rogers and another against Manuel Rogers and others. Judgment for plaintiffs, and named defendant appeals.</p> <p>Reversed and rendered.</p>

T. Adams, Judge. Action by S. L. Wagley against Araminta D. Wagley to set aside and vacate a judgment of divorce in defendant’s favor. Prom a judgment denying the relief sought, plaintiff appeals.

<p>Appeal from District Court, Jefferson County ; E. A. McDowell, Judge.</p> <p>Suit by E. Woods against the Eastern Texas Electric Company. From judgment for plaintiff, defendant appeals.</p>

<p>Sales <§=»87 (3) — Evidence held to show seller’s indebtedness for charges on cotton advanced by buyers.</p> <p>In buyer’s action against seller, where the buyers pleaded an agreement that the seller was to pay the charges that the cotton factor had against the cotton sold, and that the buyers were to advance the money and pay the charges, and that the seller was to reimburse them for the amount so paid, evidence held to show that the charges paid by the buyers for which suit was brought were proper and recoverable from defendant.</p>

<p>1. Appeal and error <@=>768 — Appellee’s brief on appeal conclusive where no brief is filed by appellant.</p> <p>Under rule 42 governing Courts of Civil Appeals (142 S. S. xiv), providing that, when appellant or plaintiff in error fails to prepare a cause for submission, appellee may file a brief in the manner required of appellant, except shaping proposition to show correctness of judgment, appellee’s brief must be accepted as correct presentation of case without examining record further.</p> <p>2. Justices of the peace <@=>61 — Plaintiff has burden of sustaining controverting affidavit to plea of privilege.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1903, as amended by Acts 35th Leg. (1917) c. 176 (Vernon’s Ann. Civ. St Supp. 1918, art. 1903), providing that plea of privilege ■ shall be a prima facie showing unless controverting affidavits are filed, the burden is on plaintiff to sustain his controverting affidavits.</p> <p>3. Justices of the peace <@=»72 — Plaintiff held not to show that he performed “labor” giving him right to resist plea of privilege.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2308 as amended by Acts 35th Leg. (1917) c. 124 (Vernon’s Ann. Civ. St. Supp. 1918, art. 2308, cl. 4), providing that actions in justice courts for labor performed may be brought at place of performance, where a plaintiff threshed several hundred bushels of grain for defendant during threshing season at stipulated sum per bushel and owned the threshing machine and employed laborers, he could not resist plea of privilege (citing Words and Phrases, Second Series, “Labor”).</p>

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Action by N. Nigro and others against C. R. Miller & Bro. Judgment for' plaintiffs and defendants appeal.</p>

<p>I.Principal and agent <&wkey; 177(2)— Purchaser at sale under foreclosure of lien not innocent purchaser, his agent knowing of fraud.</p> <p>Purchaser at sale under judgment foreclosing a vendor’s lien is not an innocent purchaser, he having acted' wholly through an agent, and so been charged with his knowledge that the owners of the land had not been cited nor represented in the action by an attorney having authority to do so.</p> <p>2. Vendor and purchaser <&wkey;287 — Sale without notice under foreclosure of lien void.</p> <p>Failure to give notice to owners of land, as required by Rev. St. art. 3757, of sale under judgment foreclosing vendor’s lien, renders the sale voidable.</p> <p>3. Judgment <&wkey;352 — Vacated on direct proceeding where defendants were not cited, though unauthorized attorney appeared.</p> <p>Judgment rendered against defendants not served with process, though an attorney without authority appeared for them, can be vacated by direct proceeding.</p> <p>4. Judgment <&wkey;>392 — Recital of service and appearance only presumptive of regularity on direct attack.</p> <p>Recital in judgment against defendants of service on and appearance by them raises only a presumption of regularity, which can be removed in direct proceeding to set aside the judgment.</p> <p>5. Limitation of actions <&wkey;IOO(4) — Till fraud in procuring judgment is discovered, statute does not run against action to avoid.</p> <p>Fraud in procuring judgment against defendants who were not served and did not appear, notwithstanding recital in the judgment of service and appearance, and though an attorney unauthorized to do so appeared for them, prevents the statute running before discovery of the fraud, even against adult defendants, as regards time for bringing action to set aside the judgment and sale under it.</p> <p>6. Infants <&wkey;>78(l), 89 — Judgment against without citation or guardian ad litem void.</p> <p>Judgment against infant defendants, who were not served, and for whom no guardians ad litem were appointed, is void, or at least voidable.</p> <p>7. Vendor and purchaser <&wkey;287 — 'Where purchaser under foreclosure of lien had notice of fraud, owners to avoid sale need not offer to repay him.</p> <p>Where judgment purporting to foreclose vendor’s lien was rendered on a note barred by limitations, and without any citation to or appearance by the landowners; and sale thereunder was without notice to them, they seeking to avoid the judgment, sale need not offer to repay what was paid by the purchaser, who bought through an agent knowing of the fraud.</p> <p>8. Appeal and .error <&wkey;173(4)— Objection must be made below to any failure to offer to do equity.</p> <p>Objection that persons whose land was sold under judgment purporting to foreclose a vendor’s lien did not, in suit to avoid the judgment and sale, offer to repay what the purchaser paid for the land, may not be raised for the first time on appeal.</p>

<p>1. Contracts <&wkey;324(l) — Party cannot recover for breach and quantum meruit.</p> <p>One who has been wrongfully prevented from fully performing his contract after he has ■entered upon performance may elect either to sue on the quantum meruit or for breach, but hue cannot do both.</p> <p>2. Damages <&wkey;l24(3) — Expenses incurred and loss of profits recoverable where performance prevented.</p> <p>One who has been wrongfully prevented from fully performing his contract may in action for breach of contract recover his actual loss, which would be the expense incurred in performance up to the time of the breach and profits he would have made out of the contract if they be established with sufficient certainty.</p> <p>3. Work and labor <&wkey;22 — Petition held one for breach of contract, and not on quantum meruit.</p> <p>A petition alleging a written contract by which plaintiff was to drill an oil well and that defendant breached the contract to plaintiff’s damage in the sum of $3,000 is for breach of contract, and not on quantum meruit, despite an amendment asserting that plaintiff, relying on the contract, moved its drilling apparatus" on the ground and drilled to a depth of about 400 feet at a cost of $1,200, and defendant received the benefit of the work, which was of the reasonable value of $1,500.</p> <p>4. Trial <©=^352(4) — in action on contract, issue held not to submit value of work done.</p> <p>In an action for breach of contract to drill an oil well, where the complaint alleged that plaintiff’s damage and loss of profit amounted to $3,000, and further alleged that it drilled a well to a depth of 400 feet, etc., a special issue submitting what amount would reasonably compensate plaintiff for the expense of moving its apparatus and drilling the well, in view of the answer, $435, cannot be deemed to have submitted the question of the value of the well, which was about one-fourth drilled.</p> <p>5. Continuance <&wkey;48 — Right to continuance from trial amendment question for the court.</p> <p>In an action for breach of contract, the question whether defendant was entitled to a continuance on account of an amendment made the morning before trial which amplified the allegations as to damages is, under ride 16 for the district and county courts (142 S. W. xviii), a matter to be adjudged by the trial court.</p> <p>6. Continuance <&wkey;30 — Denial of. continuance not abuse of discretion.</p> <p>Where, on the morning of the trial of an action for breach of contract to drill an oil well, plaintiff made an amendment to the petition by which further allegations of damage were inserted, the denial of. a continuance was not an abuse of discretion.</p> <p>7. Damages t&wkey;190 — Profits may be recovered in action for breach if the evidence is reasonably certain that plaintiff would have made a profit.</p> <p>In an action for breach of contract, profits may be recovered if the evidence warrants the conclusion that it is reasonably certain that plaintiff would have made a profit out of the contract and furnishes data from which reasonable calculation of the profits may be made, and the party who broke his agreement cannot defeat recovery merely because the evidence as to profits is inexact.</p> <p>8. Damages &wkey;> 190 — Evidence held sufficient to warrant recovery of profits for breach of contract for drilling of an oil well.</p> <p>In an action by driller for breach of contract to drill an oil well, evidence hela sufficiently certain to warrant recovery of profits, showing with certainty the necessary depth of the well, the nature of the land, and the probable profit.</p> <p>9. Damages <&wkey;208( I) — Peremptory instruction should be refused where plaintiff is entitled to any measure of recovery.</p> <p>In an action for breach of contract to drill an oil well, where there were other elements of damage on which plaintiff was entitled to go to the jury, peremptory instruction should be ■refused, though plaintiff may not have been entitled to recover profits.</p> <p>10. Damages <&wkey;62(4) — Where contract to drill well was broken, driller should minimize damages by seeking other employment.</p> <p>Just as in case of breach of contract for personal service, a driller in case of breach of contract for the drilling of an oil well should seek to minimize damages by seeking other employment.</p> <p>11. Damages &wkey;>189 — That driller could have obtained other work no ground for reducing damage where the evidence did not show the amount.</p> <p>In an action for breach of contract to drill an oil well, the fact that the driller could, have secured other work is no ground for reduction of damages, where it was not shown to what extent the damages would have been diminished.</p> <p>12. Damages <&wkey;62(4) — One who proceeds with performance after notice of repudiation cannot recover.</p> <p>Where plaintiff, after notice of defendant’s repudiation of its contract for the drilling of an oil well, proceeded with performance, he cannot recover for any expenditures in continuing the work; the contract not being one which could be specifically performed.</p> <p>13. Evidence <&wkey;522 — Experts may give opinion evidence as to the profits from drilling oil well.</p> <p>Witnesses who qualify themselves as experts may' give opinion evidence as to the profits to be derived from the drilling of an oil well. ,,</p> <p>14. Evidence <&wkey;555 — Expert evidence as to profits from drilling oil well admissible, though based on general conditions.</p> <p>Expert opinion evidence as to the probable profits from drilling an oil well is admissible, though based on the general topography of the country and the known depth of underlying rock strata, even though it was possible that oil might have been discovered without drilling to the agreed depth; that fact not rendering the testimony misleading.</p>

<p>1. Pleading <&wkey;228 — Demurrer to defendant’s allegations for damages in cross-action held not general exception to entire pleading.</p> <p>Plaintiff’s pleading termed an amended petition, and answer to defendant’s cross-action stating that he demurred generally to defendant’s allegations for damages as insufficient in law upon which to base a cause of action was not a general exception to the entire pleading, but at most a general exception to only one part of the answer.</p> <p>2. Appeal and error &wkey;>500(2) — Record must show rulings on exceptions.</p> <p>The overruling of plaintiff’s exceptions to defendant’s cross-action cannot be considered where the record fails to show that any of the exceptions were ever presented to the court or any ruling made thereon.</p> <p>3. Appeal and error <&wkey;725(2) — Assignment of error complaining of overruling of general and special exceptions is too general.</p> <p>An assignment of error asserting that the court erred in overruling, and not sustaining, plaintiff’s general and special demurrers is too general to be considered, as it attempts to call into question the court’s action upon both general and special exceptions.</p> <p>4. Appeal and error <&wkey;742( I) — Assignment followed by reference to bill of exceptions instead of statement need not be considered.</p> <p>The court is not required to consider an assignment of error not followed by any statement, but only by a reference to the bill of exceptions for any information desired in considering it.</p> <p>5. Appeal and error <&wkey;t050(l) — Admission of lease or assignment held immaterial, when lessor had waived right to object to assignment.</p> <p>The admission in evidence of a written lease, or assignment of a lease, from D. to defendant was immaterial where plaintiff, by endeavoring to collect rents from defendant and negotiating with him concerning the lease, had waived his right to object to the assignment of the lease.</p> <p>6. Landlord and tenant <&wkey;75(3) — Landlord recognizing assignee as tenant cannot deny lessee’s right to assign.</p> <p>Where plaintiff by his subsequent acts and conduct recognized an assignee of a lease as his tenant, he could not question the right of the lessee, whose tenancy he did not deny, to assign the lease.</p> <p>7. Appeal and error <&wkey;722(l)— Omission of number in numbering assignments of error is violation of rule.</p> <p>It is a violation of the rule requiring assignments of error to be numbered in a consecutive order to omit a number.</p> <p>8. Appeal and error <&wkey;724(4) — .Assignment of error to failure to submit must show exception on that ground.</p> <p>The court’s failure to submit a particular issue is not properly before the appellate court' for consideration where it does not appear from assignment of error that appellant requested the submission of any such issue or filed any written objections to the charge because it was not submitted.</p>

<p>1. Banks and banking &wkey;>i27 — •Bank becomes owner of draft on giving unqualified credit.</p> <p>When a bank gives unqualified credit for a draft attached to bill of lading, it becomes the owner thereof, and any funds collected thereon, and is not liable for any failure of the shipment to fulfill the terms of the contract between the seller and the purchaser, under U. S. Comp. St. § 8604.</p> <p>2. Principal and agent &wkey;»23(4) — Evidence held not such as would support a finding that a bank was principal acting through and in name of agent in the purchase and sale of oats.</p> <p>In an action by a purchaser of oats against seller, wherein a bank which gave seller credit for draft attached to bill of lading intervened, evidence of manager of bank that the bank “paid for the oats and would not have allowed B. [the seller] to ship them out without the proceeds of the draft being deposited in the bank” held not such as would support a finding that the bank was really the principal acting through and in the name of B. as its agent in the purchase and sale of the oats; it being apparent that the possession of scale tickets by the bank was regarded as constituting a lien on the oats to secure payment by B. of the amounts the bank had advanced in their purchase.</p>

R. Ely, Judge. •' Suit by John R. Dawkins against the Atlantic Oil Producing Company and others. Judgment for plaintiff, and the defendant company alone appeals.

<p>Appeal from Kaufman County Court; J. P. Coon, Judge.</p> <p>Action by the Federal Stock Food Company against the Thomas-Tyler Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Criminal law <&wkey;!08l — In the absence of notice of appeal, jurisdiction of Court of Appeals does not attach.</p> <p>Upon appeal from an order refusing bail in the absence of a notice of appeal, the jurisdiction of the Court of Criminal Appeals does not attach.</p>

<p>1. Robbery &wkey;>24(5) — Evidence held sufficient to warrant conviction of robbery by putting in fear.</p> <p>Evidence held to warrant a conviction of robbery by putting in fear of life or bodily injury, notwithstanding defendant, who with his confederate was masked, did not display firearms, or in any wise injure the party robbed.</p> <p>2. Criminal law <&wkey;772(6) — Alt defenses raised should be affirmatively submitted.</p> <p>All defenses clearly raised should be affirmatively submitted.</p> <p>3. Robbery <s&wkey;27(6) — Charge that if defendant took property, but did not put owner in fear, he should b'e acquitted, properly refused.</p> <p>In a prosecution for robbery, where the court told the jury that they must find that defendant, who admitted taking property from prosecuting witness, put him in fear of life or bodily injury, and if they had a reasonable doubt they should acquit, the refusal of requested charge that, if defendant took the property, but did not put the witness in fear of life or bodily injury, they 'should acquit, held proper; the issue not being raised by the evidence.</p> <p>4. Criminal law i&wkey;>834(3) — Modification of requested charge held proper.</p> <p>In a prosecution for robbery where the evidence tended to show that defendant put the owner of the stolen property in fear, and that the owner delivered the property to him, it was proper to add to a requested special charge that if the property was taken with the consent of the owner the jury should acquit, that if the owner would not have delivered except that he was placed in fear, the taking would be without his consent.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>Action by the Amicable Life Insurance Company against the City of Waco and others. Judgment for plaintiff, and defendants appeal.</p>

F. Whitehurst, Judge. Suit by F. T. Parks against, the Schoell-kopf Company, in which the defendant brought a cross-action against plaintiff. Judgment for defendant, and plaintiff appeals.

<p>1. Exchange of property <&wkey;3(l) — Reliance upon representations primary element in action to rescind for deceit.</p> <p>.One of the primary elements in an action to rescind a trade and cancel a conveyance for deceit is that the party setting it up must have relied upon the false representations, and but for which he would not have made the conveyance.</p> <p>2. Exchange of property <&wkey;5 — Rescission of executed contract not to be had for misrepresentation of title in absence of reliance on representations.</p> <p>Rescission of an executed contract of exchange of lands cannot he had for misrepresentations óf title, where they were not relied upon by the party seeking relief, or where the contract was not entered into upon the faith of such representations.</p> <p>3. Exchange of property <&wkey;3(2) — Party investigating truth of representation bound by what examination discloses.</p> <p>Where a party to an exchange of land undertakes to investigate for himself the truth of the representations of the other party, he is bound by what that examination discloses, whether he would be bound or not by what a proper examination would disclose.</p> <p>4. Exchange of property <&wkey;8(4) — Finding that person exchanging land did not rely on representations as to title held sustained.</p> <p>In an action to cancel an exchange of lands, evidence held sufficient to support a finding by the jury that plaintiff knew of pending suits and was not. misled by, and did not rely on, defendant’s representations as to title.</p> <p>5. Exchange of property 4&wkey;3(l) — Statement that suits amounted to nothing as affecting title held mere expression of opinion.</p> <p>The mere expression by defendant that suits concerning land to be exchanged amounted to nothing as affecting the title was but the expression of an opinion upon which plaintiff will be presumed equally able to form an opinion and to come to as correct judgment in respect to the matter as were the defendants, who were not lawyers, and plaintiff cannot justly claim to have been misled by such opinion, especially where he visited -lawyers for the purpose of obtaining their' opinion on the question.</p> <p>6. Covenants &wkey;>34 — Covenant qualified as be-, ing subject to mortgage deed applies only to equity of redemption.</p> <p>Where the covenant of a deed is qualified as being subject to a mortgage, the deed is treated as applying only to the equity of redemption, which is all that the deed purports to convey.</p> <p>7. Mortgages &wkey;>278 — Taking deed subject to mortgage does not import promise to pay.</p> <p>Taking a deed subject to a mortgage does not import a promise on the part of the purchaser to pay the mortgage.</p> <p>8. Mortgages <&wkey;282(4) — Land primary security for debt to be exhausted before deficiency judgment against mortgagor.</p> <p>Where plaintiff and defendants on exchanging lands exchanged deeds, the covenant in the deed delivered to defendant being qualified as being subject to a mortgage, the contract was executed, and not executory, and defendants were not obligated to pay the incumbrance, and no personal judgment could be obtained against them, the land standing as the primary security for the debt, and plaintiff having the right to have the debt first paid out of the land or to have that security exhausted before a deficiency execution could be issued against him, where there was no agreement to pay this sum as part of the consideration for the land.</p> <p>9. Mortgages &wkey;>278 — Grantor paying mortgage against land could obtain no personal judgment against grantees of land subject to mortgage.</p> <p>One conveying land by a plain warranty deed-with covenant qualified as being subject to a mortgage c-ould, if he desired, pay the mortgage when due and secure subrogation, but, if he does so, he is only entitled to foreclose against the land, and cannot obtain a personal judgment against the grantee; the payment of the mortgage not having been made a part of the consideration for the land.</p> <p>10. Subrogation &wkey;>28 — -Before grantor entitled to subrogation to rights of mortgagee, he must have paid entire debt.</p> <p>Where plaintiff in exchange of land delivered warranty deed, with covenant qualified as being subject to a mortgage, there being no agreement that the payment of such mortgage should constitute part of the consideration for the land, plaintiff was in the position of a surety on the debt which was to be paid out of the land, and before he could be subrogated to the rights of the mortgagee to sue he must pay the entire debt, and not only the interest.</p> <p>11. Subrogation &wkey;>38 — Grantor entering land and repudiating deed and appropriating rents not entitled to subrogation to rights of mortgagee. _</p> <p>_ By entering on the land and repudiating his deed and appropriating the rents and revenues to his own use, a grantor placed himself in default and appropriated part of that which should have been applied to pay the interest and taxes on a mortgage subject to which the land had been conveyed, and cannot, claim that he was subrogated to the rights of the mortgagee by reason of his having paid interest and taxes.</p> <p>12. Judgment &wkey;>743(2) —Judgment held no! such as would estop losing party from maintaining right to foreclose mortgage.</p> <p>In an action by grantor to cancel a conveyance of land, a judgment quieting title in defendants would not estop plaintiff from maintaining his.right to foreclose against the land in case he should be required to pay a mortgage subject to which the land had been conveyed.</p> <p>13. Covenants <&wkey;114(5) — Allegation of eviction necessary in suit for breach of warranty.</p> <p>In a suit on a breach of warranty by one who had exchanged lands, plaintiff must allege eviction or that the title is such that eviction will certainly follow.</p> <p>14. Exchange of property «&wkey;8(l) —Trespass to try title <&wkey;47(l) —■ Foreclosure not awarded in action for deceit or action to try title.</p> <p>Foreclosure of a mortgage could not be awarded in an action to rescind a trade for deceit or in an action for trespass to try title.</p> <p>15. Quieting title <&wkey;39 —Defendants in trespass to try title may ask that title be quieted.</p> <p>In trespass to try title defendants had the right by cross-action to ask that they be quieted in their title, and, if the evidence established ¡more than the right to such judgment, there was no error in rendering it, even if it did have the effect of settling future possible claims.</p> <p>16. Judgment <&wkey;7l3(l) — Ordinarily res ad-judicaba only as to those matters in issue.</p> <p>Ordinarily a judgment is res adjudicata only as to those matters which are in issue or disposed of or necessarily are included or should have been included and disposed of by the action.</p> <p>17. Stipulations <&wkey;l4(9) — Agreement to use abstraots held not to require defendants to furnish private abstract.</p> <p>Agreement of counsel in an action of trespass to try title to use abstracts instead of obtaining certified copies of deeds, etc., and filing the same, did not require defendants to furnish plaintiff their private abstracts, and there was no error in the trial court in refusing to require them to furnish plaintiff their private papers for examination or to use as evidence.</p> <p>18. Appeal and error <@=3 1047(5) — Refusal to require defendants to furnish private papers held not shown to be injurious.</p> <p>If it was error for the court to refuse to require defendants in trespass to try title to furnish private abstracts to use as evidence, it was not reversible error, where appellant does not show that he was thereby unable to prove his case.</p>

<p>1. Landlord and tenant &wkey;» 104 — Subletting forfeits lease.</p> <p>Under Rev. St. art. 5489, a subletting of a part of the demised premises without the landlord’s consent renders the lease contract, at the landlord’s option, subject to forfeiture.</p> <p>2. Landlord and tenant <&wkey; I — Reservation of payment of rent not essential to relation; “tenant.”</p> <p>The relation of landlord and tenant is always created by contract, either express or implied; but the reservation or payment, of rent is not essential to the creation of the relation, though it is a usual incident of a tenancy, for a “tenant” is one occupying the lands or premises of another in subordination to that other’s title, and with his consent express or implied.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Tenant.]</p> <p>3. Landlord and tenant <&wkey;l04 — Lease held forfeited by unauthorized subletting.</p> <p>Under Rev. St. art. 5489, forbidding unauthorized subletting, a lease was forfeited by a subletting where the sublessees occupied a portion of the premises under the lessees with their consent; it being immaterial that the lessees’ consent was given subject to the landlord’s approval, or that no consideration moved from the sublessees to the lessees for the use and occupancy of the premises, or that the lessees permitted the sublessees to go into possession as an accommodation and courtesy to the sublessees, or that the sublessees’ occupation was merely temporary.</p> <p>4. Appeal and • error <&wkey;7l9(8)— Failure to render judgment in accordance with verdict reviewable in absence of assignment of error.</p> <p>It being the statutory duty of the trial court to render judgment in accordance with the jury’s verdict unless the same be set aside and a new trial granted, a failure so to do presents a fundamental error which can and should be considered by the Court of Civil Appeals whether properly assigned or not.</p> <p>5. Appeal and error <&wkey;28l(2) — In case tried on special issues, motion for new trial not necessary to perfect appeal.</p> <p>Under Rev. St. arts. 1990, 1991, where a case has been tried upon special issues, a motion for new trial is not necessary to perfect the appeal.</p> <p>Walthall, J., dissenting.</p>

<p>Error from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Suit by L. H. Walter against Home Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and error &wkey;?724(2) — Assignments considered, though not distinctly specifying grounds of error.</p> <p>Though assignments of error do not “distinctly specify the grounds of error relied on,” as required by Court of Civil Appeal Rules 24, 25 (142 S. W. xii), they will be considered, being sufficient to call attention to the state of the record, and any error being one of law; there being no conflict in the testimony.</p> <p>2. Homestead &wkey;»l46 — Husband and wife 4&wkey; 276(6) — Husband of insane woman qualifying as community administrator can convey community property, including homestead, though there are no debts.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3594, 3600, the husband of an insane woman, being empowered on qualifying as community administrator to dispose of the community estate as he deems best for the interest of the estate, can convey it, though there be no community debts, and though it be the community homestead.</p>

Clark, Judge. Action by the Central Texas Exchange National Bank of Waco against J. Roy Hardin. Judgment for plaintiff was affirmed on appeal to Court of Civil Appeals, and motion for rehearing was overruled. From judgment dismissing defendant’s motion below for correction of judgment, defendant appeals.

<p>1. Appeal and error <&wkey;555 — Assignments, based on stricken bill of exceptions, not considered.</p> <p>Assignments of error, based on bill of exceptions, stricken because filed after expiration of period granted for the filing thereof, will not be considered. '</p> <p>2. Trusts <&wkey;88 — Testimony that purchaser at foreclosure sale purchased one-fifth interest for another held available to prove such other person’s interest.</p> <p>In trespass to try title, defendants, having admitted ownership of property by one of the plaintiffs by virtue of a trustee’s deed, could not complain that other plaintiff, alleged to have had a one-fifth interest, was not shown to have deraigned title separate from coplaintiff, but that such ownership was shown by testimony that coplaintiff in purchase of property at trustee’s sale purchased four-fifths for himself and one-fifth for such other plaintiff.'</p> <p>3. Appeal! and error <&wkey;934(l) — Every intendment indulged in support of judgment in absence of conclusions of fact.</p> <p>The Court of Civil Appeals must indulge every intendment in support of the judgment, where no conclusions of fact have been filed, and must affirm the judgment, if the conclusion it embodies can be said to be reasonably derived from the evidence.</p>

<p>Appeal from District Court, Dallas County ; E. B. Muse, Judge.</p> <p>Suit for mandamus by Currie McCutcheon and others against Frank Wozencraft, Mayor, and others. From judgment sustaining general demurrer to the petition, plaintiffs appeal.</p>

<p>Error from McLennan- County Court; G. T. Shires, Judge.</p> <p>Suit by J. A. Maxey against George S. McGhee and others. To review judgment for plaintiff, defendants bring error.</p>

<p>Pleading &wkey;>111 — Plaintiff’s controverting plea held sufficient to show venue in county in which action was brought.</p> <p>Plaintiff’s controverting plea to defendant’s plea of privilege to be sued in county of his residence held sufficient, in connection faith the petition made a part thereof to fix the venue in the county in which action was brought, under Rev. St. art. 1830, subd. 4, providing that, where there are one or more defendants residing in different counties, the suit may be brought in any county where any one of the defendants reside.</p>

<p>I.Appeal and error <@=3596 — Appellant required to see that transcript is properly made up.</p> <p>It is the appellant’s duty to see that the transcript is properly made up.</p> <p>2. Appeal and error >3=5518(4) — Original answer, having been amended, should be omitted from the record.</p> <p>Original answer, having been amended, should have been omitted from the record.</p> <p>3. Appeal and error >3=3748(1) — Assignments attacking sufficiency of pleading considered notwithstanding violation of briefing rules.</p> <p>Assignments of error questioning the sufficiency of plaintiff’s pleading as against general demurrer will be considered under Courts of Civil Appeals rule 62a (149 S. W. x), though they do not fully comply with the rules of briefing, since they present fundamental error.</p> <p>4. Reformation of instruments >3^36(3) — Allegations held to allege mutual mistake warranting admission of parol testimony as to actual agreement.</p> <p>Allegations that a contract “does not clearly state the minds of the parties” and “does not speak the truth of the agreement, and the minds of the parties did not meet in said writing, but did meet and agree to the effect,” etc., held sufficient to allege a mutual mistake so as to warrant admission of parol testimony as to the actual agreement.</p> <p>5. Contracts >3=>346(3) — Facts showing construction by parties of oil well drilling contract as to liability for underreaming held admissible under pleadings.</p> <p>In action for services in drilling oil well, facts showing that the defendant construed the contract so as to entitle plaintiffs for services in underreaming the casing, by payment for such services uuring certain months, and that defendant was estopped to deny liability for underreaming by plaintiffs, held admissible under the pleadings.</p> <p>6.'Appeal and error >@=>1052(5) — Admission of testimony held harmless in view of' jury’s finding.</p> <p>In action for services in drilling oil well, the admission of testimony as to the customary price for rotary drilling, if error, was harmless, where jury found in accordance with the contract price.</p> <p>7. Appeal and error >3=35742(5) — Assignments not considered where statement under assignment insufficient.</p> <p>Assignments that court erred in overruling exceptions to court’s main charge, without informing court in the brief what the exceptions were and what parts x>f the main charge they were directed against are without sufficient statements under the assignments, as required by Court of Civil Appeals rule 31 (142 S. W. xiii), and will not be considered.</p> <p>8. Appeal and error >3=3747(3) — Cross-assignment should be filed in lower court.</p> <p>Cross-assignment not having been filed in the court below as required by district court rule 101 (159 S. W. xi), and not presenting fundamental error, will be disregarded.</p>

B. Keith, Judge. Action by G. S. Britton and wife against tbe Cotton States Petroleum Company and others. From an order overruling pleas of privilege, defendants appeal.

<p>Contracts <&wkey;304(2)— Execution to contractor of written acceptance of house by owners held not an estoppel against them.</p> <p>Where the owner of a house under construction for him and his wife executed written acceptance of the work to enable the contractor to negotiate and cash the notes executed by him and wife as part payment for the improvement, such action being on the express understanding the acceptance was not to be treated as a compliance in full by the contractor with the building contract, there is no element of estoppel as against the owner and wife by reason of such execution of the written acceptance and taking possession by them.</p>

<p>1. Exchange of property <&wkey;8(3) — Allegations held to plead conspiracy to defraud.</p> <p>In an action for liquidated damages, because of defendant’s refusal to consummate a land exchange transaction, defendant’s allegations held sufficient to sustain proof that the contract was obtained pursuant to a conspiracy between plaintiff and brokers to defraud defendant.</p> <p>2. Set-off and counterclaim <&wkey;4l — Cross-action for fraud and conspiracy of plaintiff and others inducing execution of contract proper in action for liquidated damages for nonperformance.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1329, 1330, defendant’s cross-action against plaintiff and brokers, who had represented plaintiff and defendant in execution of land exchange contract to recover damages for fraud and conspiracy inducing defendant to enter into such contract, held proper in plaintiff’s action for liquidated damages for defendant’s refusal to perform the contract, since the counterclaim, though based upon a tort, was connected with and arose out of the same transaction as plaintiff’s cause of action, and since the only liability arising out of the transaction in the event of such fraud was that ,of plaintiff and the brokers.</p> <p>3. Exchange of property <&wkey;8(4)— Evidence insufficient to prove fraud inducing execution of land exchange contract.-</p> <p>In action for liquidated damages for nonperformance of a land exchange contract, in which defendant brought cross-action, alleging that plaintiff and brokers induced execution of contract pursuant to a conspiracy to defraud him, evidence held insufficient to prove such fraud and conspiracy.</p> <p>4. Damages i&wkey;85 — Actual delivery to payee ot note deposited in escrow as liquidated damages held not a prerequisite to suit thereon.</p> <p>Where each of the parties to a contract deposited a note payable to the other in escrow, with the understanding that the maker should become liable thereon on his failure to perform the contract, the actual delivery of the note to the payee was not a prerequisite to the payee’s right to sue thereon on maker’s refusal to perform the contract, the suit being based upon the entire contract comprehended in the note and in their agreement, so that the parties stood in the same relation to the note and contract as would have existed with reference to a sum of money representing liquidated damages and a contract of forfeiture left in the hands of a stakeholder.</p> <p>5. Bills and notes <&wkey;36 — Lack of maturity date held not to have affected validity.</p> <p>That note for amount to be paid as liquidated damages on maker’s breach of contract bore no maturity date did not affect its validity, the date of maturity in such case being the date on -which maker repudiated the contract, which date was to be ascertained by the evidence.</p> <p>6. Bills and notes &wkey;?36 — Note without maturity date presumed due upon demand.</p> <p>A note bearing no maturity date is valid, and is presumed to be due upon demand unless circumstances are connected with it upon which its maturity is contingent.</p> <p>7. Appeal and error <&wkey;880(l) — -Issue between plaintiff appellant’s coparty and defendant not considered.</p> <p>On appeal by plaintiff from judgment for defendant, in an action in which judgment was rendered for plaintiff and others joined with him, in defendant’s cross-action against them, the appellate court will not consider matters affecting merely issues between plaintiff’s co-parties on the one hand and defendant on the other.</p> <p>8. Appeal and error <®=^878(l) — Judgment in cross-action not considered where appeal was only from judgment in original suit.</p> <p>On appeal from judgment for defendant in original suit, where there was no appeal from the judgment rendered against defendant in his cross-action against plaintiff and others, the appellate court will not reverse the judgment in such cross-action.</p>

<p>Reformation of instruments <®=»47 — Judgment reforming instrument and enforcing it may be obtained in same proceeding.</p> <p>In Texas, where law and equity are administered in the same proceeding, if a mutual mistake has been made in reducing a contract, as a note, to writing, plaintiff may in the same proceeding obtain a judgment reforming the instrument and enforcing it according to its terms after it has been reformed.</p>

P. Dohoney, Judge. Suit by John T. McAfee against the City of Greenville. Prom judgment for plaintiff, defendant appeals. Appellee owned a dwelling .house and lot fronting north on Washington street in Green-ville, where he lived with his family.

<p>Error from Tarrant County Court; W. P. Walker, Judge.</p> <p>Action by F. G. Stone and others against the Northern Texas Traction Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Suit by C. H. Payne against D. C. Smith and another. Judgment for plaintiff, and defendant Smith appeals.</p>

<p>1. Chattel mortgages <&wkey;275 — Mortgagor not necessary parly in foreclosure against purchasers of property.</p> <p>Where action to foreclose chattel mortgage was brought against mortgagor and purchasers of the mortgaged property, the purchasers of the property cannot complain of the act of the court in dismissing the suit as to the mortgagor, it being discovered that he had not been served with citation, as the parties were not sued as joint obligors upon a contract, and it was immaterial that such purchasers had asked for a judgment over against the mortgagor in the event they were cast in the suit, the rendition of a personal judgment against the mortgagor not being essential to the foreclosure, and Rev. St. 1911, art. 1897, having no application.</p> <p>2. Chattel mortgages <&wkey;225(2) — Pleading &wkey;> 26 — Mortgagee cannot foreclose and in same suit recover for conversion, but should state such remedies by alternative pleading.</p> <p>A mortgagee has no right to a judgment foreclosing his lien against mortgaged property in J:he hands of a purchaser from the mortgagor, and in the same suit to recover a judgment for conversion of ‘that property, the 'right of a mortgagee to suit for conversion being based on the assumption that his security has been destroyed or impaired, and if he pursues both remedies in the same suit it should be by an alternative pleading.</p> <p>3. Appeal and error <©=» (153 — On appeal from judgment of foreclosure, and for conversion, the latter not being within the court’s jurisdiction, judgment will be reformed hy limiting it to foreclosure.</p> <p>On appeal from a judgment foreclosing lien against mortgaged personalty in hands of purchaser from the mortgagor, and for conversion of the property, where the suit for conversion was for less than $200 and below the jurisdiction of the court, the suit for conversion should be dismissed, and judgment limited to the one foreclosing the mortgagee’s lien on the property, and the judgment accordingly reformed and affirmed.</p>

<p>Appeal from Harris County Court; Roy F. Campbell, Judge.</p> <p>Suit by Margaret Davis against tbe Harris County Investment Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Carriers <§=3134 — Evidence insufficient to ’ show negligent delay on part of carrier.</p> <p>In an action for damages to a shipment of meal, evidence hold in view of war conditions insufficient to show negligent delay so as to render the carrier liable for its becoming heated.</p> <p>2. Carriers <9=3 120 — Carrier held not liable for injury to meal1 shipped by reason of its inherent vice.,</p> <p>A carrier is not liable for injury to a shipment of meal because of the inherent vice of the article, which became heated merely as a result of transportation.</p> <p>3. Carriers <§=>134 — Evidence insufficient to show carrier’s negligence in preserving heated meal after arrival at destination.</p> <p>Evidence held insufficient to show negligence on the part of a carrier in preserving meal after it arrived at point of destination in a heated condition, but, on the contrary, to tend to show the utmost care on part of the carrier.</p> <p>Buck, J., dissenting in part.</p>

F. Whitehurst, Judge. Action by M. P. Sorrell, administrator of F. B. Sorrell, deceased, for the benefit of himself and wife, against the Missouri, Kansas & Texas Railway Compány of Texas. Judgment for defendant, and plaintiff appeals.

P. Whitehurst, Judge. Action by Mrs. Marcellus Durrett and another against Mrs. Kate Chenault and others. Prom a judgment against the named defendant, but denying other relief sought, plaintiffs appeal.

<p>1. Appeal and error <@=>930(3)— Presumed that finding was made on issue not submitted to jury.</p> <p>In an action to cancel an oil and gas lease which was delivered by a bank in whose favor judgment was rendered, it will be presumed that the court found that the bank was not negligent; no issue as to the bank’s negligence having been submitted to the jury, though the case was tried on special issues.</p> <p>2. Deeds <§=>54 — Delivery essential.</p> <p>The delivery of a deed is essential to its validity, and an undelivered deed passes no title.</p> <p>3. Deeds <@=>56(2) — 'To amount to delivery deed must be placed in control of grantee with intention that it shall become operative.</p> <p>To amount to delivery a deed must not only be placed within the control of the grantee, but this must be done by the grantor with the intention that it shall become operative as a conveyance.</p> <p>4. Vendor and purchaser <@=>239 (9) — Where deed was never delivered, defense of bona fide purchase not available to purchaser from grantee.</p> <p>Where a deed was never validly delivered, it did not become operative, and, though the grantee obtained possession, one purchasing from him cannot defeat the grantor’s rights on the theory of bona fide purchase.</p> <p>5. Mines and minerals <@=>74 — Assignment of lease never validly delivered held not to pass title.</p> <p>Where the owners of an oil and gas lease authorized an agent to sell the same and deposited an assignment with a bank, the title did not pass where on the dishonor of the check of the purported purchaser the owners repudiated the transaction, and so notified the bank, but the agent through false statements procured possession of the assignment and had it recorded; for there was no delivery, and the owners declined to accept payment from the agent; hence even a bona fide purchaser from the agent had no rights superior to the owners.</p>

<p>Trial @==>260(1) — -Where requested issues covered in general charge refusal not error.</p> <p>Where the matters referred to in issues requested by defendant were sufficiently covered in the general charge, the refusal of such issues was not error.</p>

<p>Error from Tarrant County Court; W. P. Walker, Judge.</p> <p>Action by Will L. Sargent against Eva Wright and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Appeal and error <9=62(3) — Judgment setting aside decree of divorce and granting new trial not appealable.</p> <p>A judgment granting a petition for review and setting aside a decree of divorce, and holding the original suit for divorce for trial anew, is not a final judgment, and is not appealable, under Rev. St. 1911, art. 2078.</p> <p>2. Appeal and error <3=389(3)— Delay In filing affidavit in lieu of appeal bond operated to dismiss appeal.</p> <p>Where trial court adjourned July 1, 1920, and affidavit in lieu of appeal bond was “filed August 19, 1920,” the appeal must be dismissed for want of jurisdiction, under Rev. St. 1911, art. 2084.</p>

<p>Appeal from Williamson County Court; D. W. Wilcox, Special Judge.</p> <p>Suit by the American Bag Company against the Taylor Milling Company.</p>

D. Harvey, Judge. Action by the Standard Sanitary Manufacturing Company against Miss L. S. Koeh-ler and others. Judgment on instructed verdict for plaintiff, and certain of the defendants appeal.

<p>1. Corporations <@=3503(2)— Making of contract is “part of cause of action” for breach within statute authorizing suit in county where cause ' arose.</p> <p>Within Rev. St. art. 1830; § 24, authorizing suit against a corporation in any county in which the cause of action or a part thereof arose, the cause of action for a breach of contract consists of the contract and its breach, and the requirement that part of the cause of action must have arisen in the county where the suit is brought is satisfied by proof that the contract was made in that county.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cause of Action.]</p> <p>2. Corporations <@=>503(2) — Contract is made where acceptance of offer is given.</p> <p>The contract is made at the place where the acceptance of the offer is given.</p> <p>3. Corporations <@=503(2) — Evidence, on plea of privilege of corporation to be sued in another county, held to show contract sued on was made by seller’s acceptance of buyer’s counter offer.</p> <p>In an action for breach of contract brought in the county where the seller was located, evidence, on a plea of privilege to be sued in another county, as to conversations over the telephone between the seller corporation and the buyer corporation, which was then in another county, held to show that the contract was consummated by the seller’s acceptance of a counter proposition made by the buyer after rejecting the seller’s offer.</p> <p>4. Contracts <@=>24 — Acceptance must not vary offer.</p> <p>A contract is complete only when both parties have agreed to the same propositions, which is accomplished when one party submits a proposition accepted by the other in every respect.</p> <p>5. Venue <@=>7 — Acceptance of contract over telephone is given in acceptor’s county.</p> <p>An acceptance of an offer communicated over the telephone by the acceptor in one county to the offerer in another county is given in the county in which the acceptor was, so that, for purpose of venue, the contract was made in that county.</p>

<p>1. Pleading <@=>214(1)— Averments of petition considered true on demurrer.</p> <p>As against general demurrer, all the aver-ments of the petition are to be considered as true.</p> <p>2. Equity <@=>62 — -Courts of equity may depart froin rules announced in law actions, when necessary for justice.</p> <p>Under the rule that courts of equity will depart from rigid rules of law when necessary for the ends of justice, a decision of the Supreme Court in a case at law will not be extended, so as to preclude the doing of justice.,</p> <p>3. Principal and surety <©=>177 — Sureties on note could purchase it from payee and sue maker.</p> <p>Sureties on a promissory note for the accommodation of the maker could purchase the obligation executed by both of them from the payee bank and maintain a suit thereon against the maker and principal.</p>

<p>Appeal from Williamson County Court; F. D. Love, Judge.</p> <p>Action by J. Gottlieb against F. L. Dis-mukes and another. From an order granting defendants’ plea of privilege, plaintiff appeals.</p>

<p>On Appellant’s Motion for Rehearing.</p> <p>1. Insurance <$=>136(4) — Policy never became obligation of insurer on account of insured’s affliction with disease.</p> <p>Where a life policy provided it should not take effect as a contract of insurance unless actually delivered to the applicant therefor while he'was in good health, plaintm beneficiary, suing after insured’s death, having admitted in her pleadings and in open court at the trial that insured was afflicted with tuberculosis of the lungs when the policy was delivered to him, and that such disease caused his death, the policy by its terms never became an obligation of the insurer, and the beneficiary can recover only the amount of premiums paid, despite the failure of the insurer, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4948, in case of misrepresentations, to give notice to the insured or the beneficiary, within a reasonable time after discovery that insured had tuberculosis of the lungs, that it would not be bound by the policy.</p> <p>On Appellee’s Motion for Rehearing.</p> <p>2. Insurance <&wkey;l36(4) — Provision policy shall not take effect unless insured ip good health not prohibited by statute.</p> <p>The provision of a life policy that it shall not take effect unless insured is in good health at the time of issuance is not prohibited by Rev. St. 1911, art. 4742, subd. 3, invalidating any provision for settlement for less than the amount insured on the face of the policy.</p>

<p>Appeal from District Oourt, Henderson County; John S. Prince, Judge.</p> <p>Suit by Ida Harrison against T. N. Harrison and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Contracts <&wkey;92 — Belief in spiritualism does not alone incapacitate.</p> <p>One is not shown to be without mental capacity to contract by the mere fact that he believes in spiritualism, particularly where such belief is founded upon evidence such as readings and demonstrations, as distinguished from delusions not founded upon any evidence.</p> <p>2. Witnesses &wkey;>34l — impeachment by evidence of collateral dishonesty improper.</p> <p>In view of the rale that a witness cannot be impeached by requiring him to testify to discreditable acts on his part immaterial to the issues, in suit to recover for fraud money paid for oil stock, defendant was improperly required to testify that, although in securing charter of the oil development company she made affidavit that certain land was worth §50,000, later, after the issuance of the charter, she and her daughter conveyed to the company the same land for the recited consideration of §10,000, and that such statement of the consideration was for the purpose of evading the internal revenue tax laws, requiring stamps on deeds based upon the amount of consideration.</p> <p>3. Appeal and error <&wkey;4048(7) — Permitting impeachment of witness by collateral dishonesty held prejudicial error.</p> <p>Permitting a witness to be impeached by evidence of collateral dishonesty in a suit to recover, for fraud, money paid for oil stock, held prejudicial error.</p> <p>4. Corporations <&wkey;80( 11) — Evidence of transfer to plaintiff of stock as security held relevant.</p> <p>In suit to recover money paid for oil stock on the ground that defendant promised, intending not to perform, to secure plaintiff for his advances, which should be returned to him in case he concluded not to exercise an option given him to take stock, evidence was properly admitted that defendants transferred to plaintiff as security the claim of an oil company; such evidence tending to corroborate plaintiff’s contention that he was to have security.</p> <p>5. Corporations <&wkey;80 ( 11) — Evidence of representations held inadmissible in action to recover money paid for1 stocks.</p> <p>In suit to recover money paid for oil stock on the ground of fraud, plaintiff’s testimony as to what defendants told him in regard to another company’s being after the oil property was inadmissible on the issue of fraud, in the absence of evidence that such statements on the part of defendants were false.</p> <p>On Motion for Rehearing.</p> <p>6. Corporations &wkey;>80(11) — Acquiescence In belief of buyer of oil stock in spiritualism not a badge of fraud.</p> <p>In suit to recover money paid for oil stock on the ground of fraud, mere acquiescence on the part of a defendant in plaintiff’s belief in spiritualism would not constitute a badge of fraud, but to support the charge of fraud there must be evidence that such defendant induced such belief, or played thereon by some, false and deceitful practice, and thus induced plaintiff’s action when he would otherwise not have so acted.</p> <p>7. Corporations &wkey;>80(l2) — That defendant corporation’s stock had been fully paid for by individual defendants no defense to suit for fraud inducing subscriptions.</p> <p>In suit to recover money paid for oil stock on the ground of fraud, the claim that in taking out the charter of defendant company the total capital stock had been paid for by the individual defendants, so that it was thus deprived of power to fulfill plaintiff’s subscription contracts, if any, and that therefore plaintiff would not be bound, was no defense, where the individual defendants bore such relation to the corporation that they could be considered the corporation itself, so that the tender by an individual defendant to plaintiff of the stock for which he subscribed would be a valid tender in behalf of the corporation.</p>

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge.</p> <p>Action by L. D. Hunsucker against the Eastern Texas Electric Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, San Saba County; Ñ. T. Stubbs, Judge.</p> <p>Action by J. E. Sorell against T. S. Parker. From a judgment for plaintiff, defendant appeals.</p>

Denton, Judge. Action by the Bois d’are Creek Oil & Gas Company against the Southwestern Oil Corporation. Judgment for plaintiff, and defendant appeals. The first appeal of this case was by appel-lee, the plaintiff below, from a judgment sustaining a general demurrer to its petition and dismissing its suit. That judgment was reversed by this court February 12, 1920. 219 S. W. 1115.

<p>Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.</p> <p>Action by ’Vernon Hall and another, trustees otf the estate of Eugene E. Harper, against W. E. Conine and others, in which the National Bank of Grand Saline intervened. Judgment for certain of the defendants and in favor of intervener, and plaintiffs appeal.</p>

<p>Appeal from District Court, Jefferson County; E; A. McDowell, Judge.</p> <p>Suit by Western Indemnity Company against Henry M. Milam. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Gourt, Dawson County; W. B. Spencer, Judge.</p> <p>Action by D. B. English against P. E. Dunlap and wife. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Dallas County Court; T. A. Works, Judge.</p> <p>Action by J. E. Marvin against Kennison Bros. From a judgment for defendants, plaintiff appeals.</p>

<p>Mines and minerals <&wkey;59 — Pleas of after-acquired. title and estoppel held sufficient to constitute defense in suit to oancel lease.</p> <p>In suit to cancel an oil and gas lease, defendants’ pleas of after-acquired title by plaintiff, and of estoppel through the acceptance of annual rentals under the lease without offer to return, held sufficient to constitute a defense to the cause of action asserted.</p>

A. McDowell, Judge. Proceeding by Eleanor Hayes under the Workmen’s Compensation Act to obtain compensation for the death of her alleged husband, Charley Hayes, opposed by the Beaumont Shipbuilding & Dry Dock Company and the Miller’s Indemnity Underwriters. There was an award of compensation, and the insurer appeals.

<p>1. .Trespass to try title <&wkey;6( I)— Plaintiff could' not recover in statutory action, where her mother’s deed to a defendant recited cash consideration.</p> <p>In the statutory action of trespass to try title for the recovery of land and for damages it was necessary for plaintiff to show she had either legal or equitable title to the land described in her petition; and, where her mother’s deed to the land to a defendant recited a cash consideration, neither the legal nor the superior title which arises from express reservation of lien to secure payment of the purchase money remained in the mother, or in plaintiff through her.</p> <p>2. Vendor and purchaser <&wkey;302 — On failure of consideration through foreclosure of mortgage on land received, seller could recover value.</p> <p>Where land was sold partly for cash and partly for other land, the seller not knowing of mortgage on such other land created by the buyer conveying it as part payment, and such mortgage was foreclosed, the seller could sue for the value of the land lost through the foreclosure, with legal interest from the time it was sold.</p> <p>3. Vendor and purchaser <&wkey;254(4) — Seller entitled not only to money judgment for failure of consideration, but also to judgment fixing lien on land sold.</p> <p>Where land was sold partly for cash and partly for other land, and the seller did not know of mortgage on such other land created by the buyer conveying it, and such mortgage was foreclosed, the seller could sue, not only for a money judgment, but also unless the right of a third party had intervened for a judgment fixing a lien on the land sold.</p> <p>4. Limitation of actions &wkey;>127(!3) — Amended petition held to have stated new cause of action.</p> <p>In suit in statutory form of trespass to try title, for the recovery of land and for damages, plaintiff suing as heir of her mother, who had conveyed the land to defendant, partly for cash and partly for other land, which, unknown to plaintiff’s mother, was mortgaged, which mortgage was subsequently foreclosed, second amended petition, whereby plaintiff sought recovery of the land conveyed by her mother, or, in the alternative, the value of the land conveyed by defendant, lost by the foreclosure, and a foreclosure of her equitable lien therefor upon the land conveyed by her mother, held to state a new cause of action.</p> <p>5. Limitation of actions &wkey;»l74(2) — For statute to run against cestui under disability, legal title must be in trustee.</p> <p>If legal title is in administrator, he holds it in trust for the heirs subject to rights of creditors of decedent’s estate, and in such event, irrespective of disability, the cestui que trust is barred when the trustee is barred; hut the statute of limitations will not run against a cestui que trust laboring under a statutory disability, such as coverture, where the legal title is not in the trustee, until such disability is removed.</p> <p>6. Executors and administrators c&wkey;49 — Legal title to debt of seller against buyer descended to heirs.</p> <p>Under Rev. St. art. 3235, on death of a seller of land, legal title to her debt against the buyer descended to her heirs, and was never in her administrator.</p> <p>7. Descent and distribiition <&wkey;90(l) — Failure of administrator to bring suit authorized heir to sue.</p> <p>Failure of administrator of the seller of lands partly for cash and partly for other land, mortgage on which, created by the buyer conveying it, was foreclosed, so that the consideration failed, to bring suit until the cause of action against the buyer was barred, authorized the seller’s daughter, as her heir, inheritor of the debt against the buyer, to bring suit, though the administrator may not have been discharged.</p>

<p>Appeal from District Court, McLennan County; • Erwin J. Clark, Judge.</p> <p>Suit by the D. M. Oberman Manufacturing Company against Mrs. I. Berkman. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Boundaries <&wkey;3 (3) — Natural monuments govern over .courses and distances.</p> <p>While the intention of the surveyor in making an official survey will have an almost controlling effect in construing his work, such intention as evidenced by calls for courses and distances will not, where the survey was actually run, govern calls for natural monuments.</p> <p>2. Public lands <&wkey;!75(l/2) — State cannot recover for excess by seeking to declare vacancy.</p> <p>In case of excess, where a survey was actually run on the ground, the state cannot recover by seeking to tear surveys apart and declare a vacancy.</p> <p>3. Publio lands <&wkey;I75('/2) — Survey actually made cannot be disregarded because of excess.</p> <p>Where a survey is actually made, it cannot be disregarded because of an excess.</p> <p>4. Boundaries <&wkey;G — Courses and distances may be varied so as toi connect with lines called for.</p> <p>In view of act of October 20, 1866 (Acts 11th Leg. c. 41), amending Act May 1846 (Acts 1st Leg. p. 363), which was in force until adoption of Rev. St. of 1879, held with respect to surveys made during such period that courses and distances might be varied so as to connect with a line called for; it appearing that the surveyor intended to include all vacant land.</p>

B. Keith, Judge. Action by R. M. Grant against the City of Mineral Wells and others. Judgment denying plaintiff recovery and also denying defendant any recovery on its plea over, and plaintiff appeals.

O. McKinsey, Judge. -Suit by G. W. Cox against the Lucky Pat Oil & Gas Association and others.

<p>1. Sales <&wkey;>426 — On breach of warranty of heating system, contractors could remove plant and repay consideration.</p> <p>Under a clause in a guaranty of a heating system that, if the plant failed to comply with the warranty, “contractor shall remove all portions and parts of system without cost to owner and repay to owner all money paid” thereon, on "breach of the warranty it became the duty of the contractors, if -.they desired to avail themselves of the clause, to take out the plant and repay the owner what they had received, and, failing to do so, they became liable for breach of the warranty, just as if the contract did not contain the clause.</p> <p>2. Sales &wkey;>442(6, 7) — Where heating system not according to warranty, owner'entitled to cost of remedying defects to make it fulfill the warranty.</p> <p>Where heating system did not comply with warranty thereof, owner held entitled to recover the reasonable cost of remedying the defects, so as to. make the system fulfill the contract; there being no evidence that the plant could not be used to advantage by so adding to it and correcting its defects. ,</p> <p>3. Evidence <&wkey;474(l6) — Owner held not qualified to give opinion as to reasonable cost of remedying defects in heating plant.</p> <p>In action by owner on warranty of heating system, to recover the cost of correcting the defects in the plant to make it answer the warranty, where he had testified that he was not himself qualified to say what was necessary to be done to remedy the defects, but was qualified to testify as to the reasonable cost of the work that was actually done, his testimony that it was necessary to expend a named sum for that purpose was inadmissible, as it was shown that he was not qualified to give his opinion on what was necessary to make the heating plant do the work.</p> <p>4. Damages c&wkey;42 — Expenditures must be shown reasonable and necessary to be recoverable.</p> <p>When expenditures are made necessary by the wrong of another, the party making expenditures, before he can recover the amount paid, must show that there was a necessity for incurring the expense and that the amounts paid were reasonable.</p> <p>5. Pleading <&wkey;228 — Allegations as to cost of remedying defective heating system held not sufficiently specific as against special exceptions.</p> <p>In action by owner on warranty of heating system, to recover the cost of correcting the defects in the plant to make it answer the warranty, where plaintiff, in general terms, alleged that the reasonable cost of work and material necessary in reconstructing the heating system, so as to remedy the defect, was a certain sum, such allegations were not sufficient on special exceptions.</p>

<p>1. Mines and minerals <@&wkey;55(2) — Clause held exception and not reservation of mineral rights.</p> <p>In a general warranty deed by grantor and wife of 160 acres, a clause reciting that the grantor did “reserve and hold all minerals of all and any kind (except stone coal) that may be on the aforesaid land for my own use and benefit” held not a mere personal reservation or license in favor of the grantor and ending at his death, but an exception of the oil and minerals in the land, wholly withdrawing the mineral rights from the operation of the conveyance, so that the mineral interest on grantor’s death passed by inheritance to his heirs; and it was immaterial that the word “on” was used, instead of the word “in,” and that the reservation was to the grantor alone, and not to both him and Ms wife, and that there was no specific reservation of the right to enter on the surface for the purpose of drilling and developing for oil and gas; these being incidental privileges essential to the existence of the mineral right, and therefore necessarily implied from the exception.</p> <p>2. Deeds &wkey;>l38 — -“Exceptions” and “reservations” distinguished.</p> <p>A “reservation” is a clause in a deed creating or reserving something out of the thing granted that was not in existence before, while “exception” is something existing before as a part of the tMng granted, and which is excepted from the operation of the conveyance (citing Words and Phrases, Exception).</p> <p>' [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Reservation.] .</p> <p>3. Estoppel &wkey;>38 — Conveyance by heirs with warranty passed their interest, later acquired on death of their ancestor.</p> <p>Where sons of the grantor in a deed excepting mineral rights conveyed the land by warranty deeds, which, being without limitation, conveyed full fee-simple title, under Yer-non’s Sayles’ Ann. Civ. St. 1914, art. 1106, on the death of the grantor, they and those in privity with them by inheritance or by purchase were estopped from claiming as against their grantees their share inherited from the grantor in the mineral rights so excepted.</p>

<p>1. Trial <&wkey;357 — Answer to special issue held responsive.</p> <p>In an action on a note, ah answer to special issue as to what induced defendant to sign the note, that the note was signed, for the consideration therein expressed is responsive, being equivalent to a statement that the consideration recited was true.</p> <p>2. Appeal and error <&wkey;1002 — Verdict on conflicting evidence not disturbed.</p> <p>A verdict on conflicting evidence will not be disturbed on appeal.</p> <p>3. Bills and notes <&wkey;534 — Allowance of attorney’s fee proper in action on note.</p> <p>In an action on a note brought by trustee to whom it bad been indorsed, where judgment went for plaintiff, it was proper to enter judgment for attorney’s fees, despite defendant’s contention that there was no evidence, either that the note bad been placed in the bands of an attorney for collection, or that the amount allowed was reasonable.</p> <p>4. Appeal and error <&wkey;978(2) — Denial of new trial for misconduct of jury reviewed only in case, of abuse of discretion.</p> <p>While the discretion of a trial judge in refusing to set aside a verdict for improper conduct of a jury is not an arbitrary one, and is subject to review by the appellate courts, the action of the trial court will be reviewed only where there has been a clear abuse of discretion.</p> <p>5. Evidence <&wkey;!58(28)— Bank account admissible, despite objection that it was not the best evidence.</p> <p>In an action on a note given by one copart-ner to another, where it was asserted that over $50,000 had been charged to the payee co-partner for which the maker had not accounted, and drafts and checks claimed to have been charged to the payee’s account were introduced in connection with the payee’s testimony, the entire bank account of the payee was admissible, despite the contention that it was not the best evidence, to show that checks and drafts were not charged to his account as claimed.</p> <p>6..Evidence <&wkey;155(8) — Partnership <&wkey;2l7(2) —In suit on note to copartner, bank account of payee admissible to show checks and drafts were not charged against the account as claimed.</p> <p>In an action on a note given by one co-partner to another, where it was claimed as to the consideration that the maker had not accounted to the payee partner for about $50,-000, and checks and drafts were introduced in support of the payee’s testimony to that effect, the entire bank account of the payee was admissible, falling within the rule that one person may introduce the remainder of an account when the other party introduces a part thereof, and was also admissible to show that such drafts and checks had not been charged against his account as claimed.</p>

<p>Error from District Court, Hardin County; J. L. Manry, Judge.</p> <p>Suit by the Southwestern Settlement & Development Company and others against the Village Mills Company and others. Judgment for defendants, and plaintiffs bring error.</p>

P. Dohoney, Judge. Suit by C. F. Pierce against the Texas Employers’ Insurance Association. Judgment for plaintiff, and defendant appeals.

Error from District Court, Hunt County; A. P. Dohoney, Judge. Action by J. M. Erazier and others against C. W. Rollins. Judgment for defendant, and plaintiffs bring error. The plaintiffs in error own a tract of 135 acres of land, through which the Cotton Belt Railroad extends. Thirty-five acres of .the land lies north, and 100 acres south, of the railroad. On the south of the entire farm a public county road extends from east to west.

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Action by Jonnie B. Knigbton and bus-band against J. D. Lancaster and another, receivers for the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendants appeal.</p> <p>Appellee Jonnie B. Knighton was a passenger on a train operated by appellants over the Texas & Pacific Railway Company’s line of railway from Texarkana to Marshall. She was sitting by a window of the car she was traveling in, resting her left elbow on the sill of the window, when the car so lurched or swayed as to cause her hand and forearm to fall and extend outside the window and strike some part of a locomotive engine standing on a track near the one her train was rapidly moving on. A result of the accident was to break and otherwise injure her arm. On the theory that it was negligence on the part of appellants to have said locomotive at a point on the other track so near the one her train was moving on, said appellee, joined by her husband, commenced and prosecuted this suit to a judgment for $750 in their favor.</p> <p>The fourth paragraph of the trial court’s charge to the jury, which appellants objected to, was as follows;</p> <p>“If the jury shall believe from the evidence by a preponderance thereof that Jonnie B. Knighton was resting her arm upon the window of a coach, and that on' account of a sudden jar or jerk of the coach her arm was thrown out of the window, and you shall further believe that the servants of the defendant failed to exercise the highest practicable degree of care to avoid injuring her and stopped one of the defendants’ engines on a side track so close to the coach in which plaintiff was riding as to strike her hand, thereby injuring her, then you will return a verdict for the plaintiff for such damages as she may have suffered, unless you find for the defendants under other portions of this charge.”</p> <p>The grounds of the objection urged to said paragraph of the charge were that—</p> <p>There was “no evidence nor pleading that any jerk of the passenger train was caused by any want of care on defendants’ part, but it was only the ordinary jerk of the train.”</p> <p>In the fifth paragraph of his charge the trial court further instructed the jury as follows:</p> <p>“If you believe from the evidence that plaintiff for some cause protruded her arm out of the window of the car in which she was rifling, and that a person of ordinary prudence under the circumstances would not have done so, if she did such act, thereby receiving her injury, then under such circumstances the plaintiff would be guilty of contributory negligence as above defined to you, and the defendant would not be liable to her for damages, and if you so believe you will find a verdict for the defendant.</p> <p>“If you believe plaintiff was not injured while riding upon the train, but received her injury in some other manner, you will find for the defendants.”</p>

Error from District Court, Polk County; J. L. Manry, Judge. Action by J. H. Spivey against the Saner-Ragley - Lumber Company and another, Mrs. Fannie Spivey and others being substituted as plaintiffs on the death of J. H. Spivey. Judgment for plaintiffs, and defendants attempted to bring error, after death of one of the substituted plaintiffs.

<p>Appeal from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Suit by W. S. Moore and wife against J. V. Jenkins. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Shackelford County; W. R. Ely, Judge.</p> <p>Action by Mrs. Stella Eorbess and her husband H. W. Forbess against J. H. Elliott. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Tyler County; D. P. Singleton, Judge.</p> <p>Suit by W. T. Carter & Bro. against Vernie B. Brown. Judgment for defendant, and plaintiff appeals.</p>

Action by Austin M. Buck against the Galveston, Harrisburg & San Antonio Railway Company and another. Judgment for plaintiff against the named defendant only, and it appeals.

Suit by the Rio Grande & Eagle Pass Railway Company against the Railroad Commission of Texas. Judgment for defendant was reversed and rendered by the Court of Civil Appeals (175 S. W. 1116), and defendant brings error. Judgment of Court of Civil Appeals reversed, and that of the district court

<p>1. Taxation <&wkey;24i(l) — No buildings within constitutional authority for exemption unless owned and used exclusively by public charity.</p> <p>No building comes within the exemption from taxation authorized by Const, art. 8, §' 2, unless it is both owned and used exclusively by an institution of purely public charity.</p> <p>2. Constitutional law i&wkey; 18 — Presumption conclusive that people adopted constitutional provision with knowledge of intent as declared by Supreme Court.</p> <p>Where the language of Const, art. 8, § 2, authorizing the exemption from taxation of buildings used exclusively, and owned, by institutions of purely public charity, as construed by the Supreme Court, was carried without change into the subsequent amendment of the section, the presumption is conclusive that the people readopted the provision with knowledge of its declared intent.</p> <p>3. Taxation &wkey;>24l (I) — Legislature might conclude benevolent association was an institution of “purely public charity.”</p> <p>The Legislature might reasonably conclude that an institution was one of “purely public charity” within Const, art. 8, § 2, authorizing exemption from taxation of buildings used exclusively, and owned, by institutions of purely public charity where, first, it made no gain or profit, second, it accomplished ends wholly benevolent, and, third, it benefited persons, indefinite in numbers and in personalties by preventing them, through absolute gratuity, from becoming burdens to the state.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Purely public charity.]</p> <p>4. Taxation <&wkey;24I (3) — Scottish Rite Benevolent Association a purely public charity within constitutional authorization of exemption.</p> <p>In view of the purpose for which a Scottish Rite Benevolent Association was formed and the philanthropies which it practiced, fteZdl that such institution was an institution of purely public charity within Const, art. 8, § 2, providing that the Legislature may exempt from taxation all buildings owned by such an institution; as a charity need not be universal to be public.</p> <p>5. Taxation <3=241(1) — Constitutional exemption'authorization not satisfied by charity’s letting building to obtain revenue.</p> <p>It does not satisfy Const, art. 8, § 2, authorizing the Legislature to exempt from taxation a building of an institution used exclusively and owned by an institution of purely public charity, that the use of the building by others than the institution was permitted by the owner to obtain revenues to be devoted entirely to its work of public charity, nor is the requirement satisfied by the fact that those sharing the use pay no rent, as the actual direct use must be exclusive on the part of the charity.</p> <p>6. Taxation <&wkey;24l (I) — Building of Scottish Rite Benevolent Association used by Masonio lodges not used exclusively by institution of purely public charity.</p> <p>To the extent that the property was used by Masonic lodges whose activities included fields other than charity, it was not and could not be used exclusively by an institution of purely public charity, within Const, art. 8, § 2, authorizing the Legislature to exempt from taxation a building owned and used exclusively by such an institution.</p> <p>Certified Question from Court of Civil Appeals of First Supreme Judicial District</p> <p>Suit to recover taxes by tbe City of Houston against tbe Scottish Rite Benevolent Association and another. From a judgment for defendants, plaintiff appealed to tbe Court of Civil Appeals, which affirmed. On motion for rehearing, the Court of Qivil Appeals certified the question: Was the property of the association exempt from taxation? Question answered in the negative.</p>

<p>Appeal from District Court, Kaufman County; Joel R. Bond, Judge.</p> <p>Clyde Chandler was convicted for selling intoxicating liquor to another, and he appeals.</p>

E. O’Neal, Judge. - Action by Mrs. Nannie E. Wear against W. J. Johns. From judgment for plaintiff, defendant appeals. The action is by appellee in trespass to try title to 215 acres of land' of the P. S. Wyatt survey. The defendant, the appellant here, answered by general denial and the plea of not guilty. The case was submitted to the jury on special issues, and on their findings of fact judgment was entered in favor of the plaintiff.

<p>1. Constitutional law (§=348 — Statutes declared unconstitutional only where there exists a clear conflict.</p> <p>The Legislature in enacting laws is presumed to regard the limitations imposed by the Constitution as assiduously as courts regard them in construing and applying laws, and it is properly the function of courts to seek out how by reasonable construction to uphold and enforce the legislative will as being consistent with the Constitution rather than to review and nullify it.</p> <p>2. Statutes <&wkey; 100(1) — “Members of board of road commissioners not officers” within constitutional provision relating to special Iegis- . lation; “office”; “employment.”</p> <p>The duties of an office as distinguished from an employment are continuing and permanent rather than temporary and transitory, and hence members of the board of permanent road commissioners for road district No. 15 of Limestone county constituted, under Sp. Laws 36th Leg. (1919) c. 74, are not officers within the meaning of Const, art. 3, § 56, and article 16, § 30, relating to the creation of offices by special legislation and tenure of office.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Employment; Office; Officer.]</p> <p>3. Officers &wkey;100(1)— Statutes &wkey;IOO(l)— Special law authorized imposing additional duties on officers of same department and providing extra compensation.</p> <p>The Legislature may impose additional duties on public officers so long as the added duties are distinctly embraced within the same department of government to which the original ones belong, and has tlie right to provide extra remuneration for the extra services to be rendered by the ex officio members, and hence had authority to do so in Sp. Laws 36th Leg. (1919) c. 74, wherein it made county judge, county auditor, four commissioners, and three citizens members of a board of road commissioners.</p> <p>4. Statutes <&wkey;8!/2'(l)— Local laws may ble passed for1 both the construction and maintenance of roads.</p> <p>Under Const, art. 11, § 2, and article 8, § 9, the Legislature may pass local laws for construction as well as maintenance of public roads and highways already built without the local notice required for special or local laws, in view of article 3, §§ 62, 56.</p> <p>5. Constitutional law &wkey;>l2 — Particular provision to be construed! as exception to general provision.</p> <p>When one section of the Constitution expresses a general intention to do a particular thing and another section expresses a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception.</p> <p>6. Constitutional law <&wkey;l4 — Where meaning is .plain, courts should not attempt to construe.</p> <p>Where the meaning of a constitutional provision is plain, courts should not attempt to construe it, but should allow its clear meaning to apply.</p> <p>7. Statutes <&wkey; 100(1) — Constitutional provision relating to creating offices by special or local law held not to apply to members of board of commissioners of road district.</p> <p>Inhibition of Const, art. 3, § 66, against creating offices or prescribing the powers or duties of officers in counties, cities, towns, election or school districts by special or local law, relates only to offices and officers for counties, cities, towns, election or school districts, and does not apply to members of a board of commissioners of a road district such as Limestone county road district No. 15, established under 8p. Laws 36th Leg. (1919) c. 74, which creates a board of road commissioners composed of county judge, county auditor, commissioners, and three citizens to be selected from each commissioner’s precinct, but assuming that such section 56 does apply, section 52 at least by necessary implication excepts such officers, and in connection with article 8, § 9, authorizes the Legislature by special or local law to create them and prescribe their powers and duties as incidental provisions for the issuance of bonds to construct macadamized roads.</p> <p>8. Officers <&wkey;49 — Law providing for commissioners of road district held not to violate constitutional provision concerning duration of office.</p> <p>Assuming that citizen members of the permanent board of road commissioners of Limestone county road district No. 15, established and organized under Sp. Laws 36th Leg. (1919) c. 74, are officers, it cannot be said that the latter act violates Const, art. 16, § 30, in that the tenure of office is to be until the work is completed, since such constitutional provision can be read into the act so as to make it read, “And shall continue to serve not exceeding two years as members of said board,” etc.</p> <p>9. Highways <&wkey;9( — Statutes <&wkey;94(2) — -Special road law held not an unwarranted attempt to control affairs of county by special law.</p> <p>Sp. Laws 36th Leg. (1919) c. 74, providing for establishment of road districts and creation of a board of permanent road Commissioners composed of certain county officers and citizens selected from each commissioner’s district for the carrying on of the work, is not unconstitutional as an unwarranted attempt by the Legislature to control the affairs of limestone county by special law or to take from the commissioners’ court powers conferred upon that body alone in violation of Const, art. 5, § 18, in view of article 3, § 52, and article 8, § 9.</p> <p>10. Counties &wkey;>39 — Legislature held to have power to commit county business to other agency than commissioners’ court.</p> <p>Const, art. 5, § 18, providing that the commissioners’ court shall exercise such power and jurisdiction over all county business as is conferred by the Constitution and laws of the state, does not preclude the Legislature from committing any county business to some other agency, nor does any other provision of the Constitution prohibit the exercise of such legislative power.</p> <p>11. Statutes &wkey;j163 — General laws give way to later special laws.</p> <p>The fact that a special enactment conflicts with general laws already existing when it was enacted does not affect its validity, as the repugnant portions of the general laws give way to those of the special law, and its provisions will be given the same scope and effect as they would have without the existence of a general law having contrary application.</p>

L. Manry, Judge. Action by L. P. Palmer and wife against the Gulf Production Company and others. Judgment for plaintiffs, and the defendant Company and some of the other defendants appeal.

<p>1. Appeal and Error <&wkey; 1053(2) — Erroneous admission of evidence not cured by instruction, to disregard.</p> <p>Erroneous admission, over objection, of evidence of damage to unbaled hay, in an action for injury to baled hay only, was not rendered harmless by subsequent charge not to consider such evidence; the verdict having been for more than the amount of the damages to the baled hay, as testified to by plaintiff.</p> <p>2. Trial <&wkey;>350(3) — Issue as to minimizing damages raised by pleading and evidence should be submitted.*</p> <p>The issue of minimizing damages, having been raised by the pleading and evidence, the court should, on request, have submitted whether plaintiff could have saved part of the hay which was destroyed, and not merely whether he could have saved all of it.</p> <p>3. Trial <&wkey;260 (I) — Requested instructions covered by others given, properly refused.</p> <p>Requested instructions substantially covered by instructions given need not be given.</p> <p>4. Damages <&wkey; 110 — Measure for permanent injury to land stated.</p> <p>The difference between market value of land immediately before and after injury to it is the measure of damages for permanent injury.</p> <p>5. Trial <&wkey;2l5, 350(3) — On conflicting evidence as to nature of injury, issue should be submitted, with instructions as to different measures of damage.</p> <p>The evidence in action for injury to land being conflicting as to whether the injury, if any, was permanent or temporary, an issue should have been submitted as to what was its nature, with an instruction as to the difference in the measure of damages in the two cases.</p> <p>6. Damages &wkey;> 109 — Measure for temporary injury to land stated.</p> <p>The measure of damages for temporary injury to land is the cost of restoring it to its prior condition and the value of its use while in its injured state.</p> <p>7. Trial <&wkey;202, 255(1) — Duty of court" and parties as to submitting issues stated.</p> <p>It is the duty of the court in the first instance to submit all the issues raised by the pleadings and evidence, and on its failure so to do it is then the duty of the complaining party to present the matter to it and request proper instructions, which, if material, it must give or submit in some form to give the party the benefit thereof.</p>

<p>1. Vendor and purchaser <&wkey;343(2) — Equity will relieve purchaser by acre¿ where quantity is fraudulently or innocently misrepresented by vendor or mistake is mutual.</p> <p>Equity will relieve purchaser where, in the sale of land by the acre and not in bulk, the quantity is misrepresented by vendor, and the deficiency is so great as to be material and substantial, whether the misrepresentation is fraudulently or innocently made or the mistake is mutual.</p> <p>2. Covenants <&wkey;47 — Vendor and purchaser &wkey;>342 — Purchaser’s remedy for deficiency in acreage is equity action for damages, not suit on general warranty, which is of title and not quantity.</p> <p>Where the quantity of land purchased by the acre was misrepresented by the vendor, the purchaser’s appropriate remedy is an action in equity to recover damages by reason thereof and not a suit on the general warranty, as such warranty is of title and not of quantity.</p> <p>3. Limitation of actions &wkey;>39(2) — Four-year statute applies to purchaser’s action against vendor in equity for shortage in acreage represented.</p> <p>The four-year statute of limitations applies to a purchaser’s equitable action against a vendor for misrepresentation of the quantity of land purchased at a fixed price per acre.</p> <p>4. Limitation of actions <&wkey;95( I) —Begins to run against claim for shortage when discoverable.</p> <p>Limitations do not begin to run as to a purchaser’s claim for shortage, until he discovers, or should by the exercise of ordinary diligence discover, the shortage.</p>

<p>Appeal from District Court, Leon County; J. A. Platt, Judge.</p> <p>Action by S. H. Carrington against F. M.’ Carrington and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Anderson County Court; Mills D. Reeves, Judge.</p> <p>Action in justice court by J. B. McDonald against Walker D. Hines, Director General of Railroads, operating the International & Great Northern Railroad, for the value of a cow. Judgment for plaintiff, and upon appeal and trial de novo in the county court, judgment was also rendered for plaintiff, and defendant appeals.</p>

<p>1. Vendor and purchaser &wkey;228(7) — Lessee could not hold minerals in absence of offer to redeem by paying off purchase-money notes.</p> <p>One who purchased oil and mineral lease with constructive notice of outstanding purchase-money notes against the land could not hold the ¡minerals in the absence of an offer to redeem by paying off the notes.</p> <p>2. Vendor and purchaser <&wkey;54, 215, 223 — Purchaser under executory contract has only equitable title; assignees of option and persons claiming under holder of equitable title not purchasers for value.</p> <p>Where the vendor of land, having assigned to T. vendor’s lien notes with the lien securing their payment “together with the superior title,’’ acted as T.’s agent in procuring from the purchaser of the land a conveyance by quitclaim to T. in satisfaction of the notes held by T., but the vendor, in fraud of his principal, T., prior to procuring the quitclaim, procured from the purchaser, without any consideration, a gas and oil lease in the name of E., which lease did not convey the minerals in place, but amounted merely to a grant of the right or option to prospect upon the land for oil, gas, and other minerals and to reduce those minerals to possession and ownership, assignees of this lease could not daim as innocent purchasers, both because they themselves were the assignees, not of an interest in land, but of a mere option, and also because the purchaser under whom they claimed did not have the superior legal title, but merely held under an executory contract, so that his title was equitable.</p>

<p>Landlord and tenant <®c=>321 — Contract of landlord for one-third of cotton crop held valid.</p> <p>Landlord and Tenant Act (Rev. St. art. 5475), making a contract for a rental in excess of one-fourth of the cotton crop void where tenant “furnishes everything except the land,” did not affect validity of a contract giving landlord, who furnished tenant a dwelling in which to live, pasture for his stock, and ground for a garden, a one-third share of the crops.</p>

<p>1. Insurance &wkey;M87(3) — Physician liable on note given life insurance agents for policy premium on agreement he might pay it from his fees from medical examinations.</p> <p>Where agents of a life insurance company had a physician who took out a policy appointed medical examiner for the insurer on his agreement to pay the note given for the premium advanced by such agents with funds received for examinations, such physician, who received some $485, but paid only $85 on the premium note of $258, while tenaciously holding the policy, is estopped to deny his liability on his premium note to the agents, despite par- , tial breach on the agents’ part through failure to give the physician enough examinations in the six months at the end of which the note became due to pay it, such provision having been waived by the physician’s agreement to give the agents all he might make for six months more.</p> <p>2. Evidence &wkey;>44!(l() — Testimony varying written note or contract should have been excluded on payees’ objection.</p> <p>In suit by life insurance agents'on a premium note given them by a physician whom they had appointed medical examiner for the insurance company, the note providing that it was to be paid by medical examinations, testimony as to another agreement varying the written note or contract should have been excluded on the objection of plaintiff agents.</p>

<p>1. Constitutional law <&wkey; 196 — Legislature may give retrospectively capacity it might have given in advance, etc.</p> <p>It is competent for the Legislature to give retrospectively the capacity it might have given in advance, and to dispense retrospectively with any formality it might have dispensed with in advance.</p> <p>2. Drains <&wkey;66 — Purpose of taxation by drainage districts is public purpose and among powers given to Legislature.</p> <p>Drainage districts being departments of government, the purpose of taxation by them is a public purpose and among the powers given by the general provisions of the Constitution to the Legislature.</p> <p>3. Drains &wkey;>67 — Authority of Legislature to provide for levy of taxes for upkeep of drainage ditches not impaired by constitutional amendment.</p> <p>The Legislature had constitutional authority to pass Laws 1913 (Ex. Sess.) c. 36,’ § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art.. 2608b), and Laws 1915, c. 33, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 2003), providing for levy of taxes for the upkeep of drainage ditches, and such power was not taken away by the 1917 amendment to the Constitution, adding to article 16, section 59, designated section 59a.</p> <p>4.Drains <&wkey;67 — Statutes providing for levy of taxes for upkeep not violative of Constitution as attempting to levy excessive tax.</p> <p>Laws 1913 (Ex. Sess.) c. 36, § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2608b), and Laws 1915, c. 33, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 2603), providing for levies for the upkeep of drainage ditches, are not violative of Const, art. 8, § 9, article 3, § 52, and article 10, § 59, as attempting to levy a tax in excess of that prescribed therein.</p>

<p>Appeal from Johnson County Court; O. O. Chrisman, Judge.</p> <p>Suit by the Gladney Milling Company against W. S. Dement. Judgment for defendant, and plaintiff appeals.</p>

<p>Error from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by the Stockyards National Bank against J. B. Wilkinson. Judgment for plaintiff giving him insufficient relief, and he brings error.</p>

<p>Appeal from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Suit by J. M. Scott and another against M..B. Canon. Judgment for plaintiffs, and defendant appeals.</p>

<p>Bills and notos &wkey;>64 — Check given in full settlement can be collected, though not accepted as fun payment.</p> <p>Where the buyer of goods sent Ms cheek for an amount he admitted to be due to the seller, the seller can enforce payment of the check without accepting it in full settlement as specified by the buyer, since the buyer is liable for that amount in any event, and his liability for the balance claimed by the seller can be determined in an action to recover the rest of the purchase price.</p>

<p>Appeal from District Court, Erath County; J. B. Keith, Judge.</p> <p>Suit by John E. Smith and others against Walter Grundy. Erom judgment for plaintiffs, defendant appeals.</p>

<p>1. Carriers <&wkey;383 — Direction of verdict for carrier in action for injuries on being ejected from train held proper under evidence.</p> <p>In an action for injuries sustained through being shot by a deputy sheriff on being ejected from a train for nonpayment of fare, evidence held not to raise the issue of the carrier’s liability, so that a directed verdict for defendant was proper.</p> <p>2. Carriers <&wkey;365(2) — To throw rocks at one stealing ride on top of coach and firing a shot to scare him held not an unlawful assault.</p> <p>In a minor’s action for personal injuries through being shot by a deputy sheriff on being ejected from a train for nonpayment of fare, evidence that the conductor caused rocks to be thrown at plaintiff while on top of a coach, and firing a shot in the air for the purpose of scaring him, held not to show an unlawful assault or wrongful exercise of authority in accomplishing the ejection.</p>

<p>Appeal from District Court, Waller County; J. D. Harvey, Judge.</p> <p>Action by W. R. Patterson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (204 S. W. 1026), but was reversed and cause remanded to Court of Civil Appeals by the Supreme Court for consideration of defendant’s assignments 1 to 3, inclusive (228 S. W. 119).</p>

<p>1. Pleading &wkey;?ll — Plaintiff not required to plead evidence.</p> <p>In suit for damages, based on the destruction of crops by cattle through negligence of defendant in not having sufficient fences, plaintiff was not required to plead his evidence as to the condition of the fence.</p> <p>2. Animals &wkey;?55 — Proof of adoption of stock law justified under pleading.</p> <p>In suit for damages based on destruction of crops by cattle, allegation that a general stock law was in effect in the county justified proof that a live stock law had been adopted in that county, prohibiting stock from running at large.</p> <p>3. Evidence <&wkey;47l(!9) — Statement that fence was sorry not mere expression of opinion.</p> <p>The statement of a witness that a fence was “very sorry,” and “what I mean by real sorry, it was old and rotten,” was not the expression of opinion, but the statement of a fact, like a statement that a thing was wet, or a fire was hot, or a horse was lame.</p> <p>4. Evidence <&wkey;50l(6) — Opinion that fence was pretty poor admissible where facts are stated.</p> <p>Testimony that a fence was “pretty poor” was not erroneous as an expression of opinion, when accompanied by the explanation that “some of the wires were broken, and the posts were down, and it was an old fence and the wire was old.”</p> <p>5. Evidence <&wkey;489 — Testimony of witness as to comparative value of hay and sorghum held admissible.</p> <p>In a suit for damages based on the destruction of crops by cattle, court did not err in permitting witness to testify when asked about the comparative value of stacked hay and sorghum, “it ran about the same as in any other year” and “I think sorghum feed stuff stacked up like that was, ran about the same as prairie hay.”</p> <p>6. Appeal and error t&wkey;l050(l) — Admission of evidence held harmless, if error.</p> <p>In suit for damages, based on destruction of crops by cattle, testimony of witness concerning the comparative value of stacked sorghum and prairie hay, “it ran about the same as in any other year,” and “I think sorghum feedstuff’ stacked up like that was, ran about the same as prairie hay,” was harmless, if incompetent.</p>

<p>Appeal from Johnson County Court; O. O. Chrisman, Judge.</p> <p>Action by E. M. Loveland and another against J. A. Ingle. From judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Harris County; W. E. Monteitb, Judge.</p> <p>Action by the Houston Bag & Bagging Company against the Werthan Bag Company. Judgment for plaintiff on a directed verdict, and defendant appeals.</p>

<p>Appeal and error <&wkey; 1024(3) — Action against corporation may be maintained in county where cause of action arose.</p> <p>Finding of court on plea of privilege based on Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, § 24, providing that suits against'a corporation may be maintained in any county where the cause of action or part thereof arose, that contract was made in county of suit, will' not be disturbed on appeal where sustained by evidence.</p>

C. Jeffrey, Judge. Action for partition by Rollie Brown and others against Littleton Brown and another, in which L. D.. Brown was appointed guardian ad litem for all minor parties to the suit. From a judgment which denied the validity of partition agreement as to the minors, the adult parties appeal.

S. Munson, Judge. Suit by John W. White against the Peyton Creek Irrigation District, which answered, with a cross-action against Sutherland and another, sureties on plaintiff’s contractor’s bond. Decree for the plaintiff and that defendant take nothing by its cross-action, and the defendant appeals.

<p>I.Habeas corpus &wkey;>54 — Petition held to sustain writ as against plea in abatement.</p> <p>In a proceeding by a husband against his divorced wife for a writ of habeas corpus to determine custody of minor daughters originally awarded to the wife, petition hold to allege developments after the decree materially altering the conditions then prevailing sufficient, in the absence of special exception, to sustain the writ as against a plea in abatement.</p> <p>2. Habeas corpus &wkey;>4l — Court issuing decree not authorized to change custody of children to exclusion of other courts.</p> <p>Where a district court in divorce proceedings has determined the custody of minor children, such court has not the exclusive authority to change its determination, but habeas corpus before another court will lie by the husband against the wife under changed conditions to obtain a modification of the order as to custody.</p> <p>3. Jury &wkey;>19(19) — No constitutional right to jury trial in proceedings to determine custody of children.</p> <p>In habeas corpus hearings to determine the matter of custody of children subsequent to divorce proceedings, there is no constitutional right to a trial by jury. ’</p> <p>4. Habeas corpus <&wkey; 113(12) — Appellate court will not interfere with discretionary findings of trial court as to custody of children subsequent to divorce.</p> <p>On habeas corpus to determine the custody of children as between divorced parents, where the well-being of the children furnishes the sole occasion for the exercise of judicial power, a broad discretion is by law vested in the court which has the parties and witnesses before it, and, when on a full hearing a determination has been made, an appellate tribunal will not interfere therewith where the record fails to disclose lack of sufficient evidence or a response to other than sound judicial consideration.</p>

<p>Error from District Court, Hunt County; Wm. Pierson, Judge.</p> <p>Action by Seaborn J. Ross against Walker D. Hines, Agent of the United States Government. Judgment for plaintiff, and defendant brings error.</p>

E. Wilcox, Judge. Motion by Isaac Griffith and others to reform a judgment by correcting clerical errors in relation to tracts'of lands was allowed, and Mattie Renois and .others interested, appealed.

<p>Error from Ellis County Court; L. E. Wilson, Judge.</p> <p>Suit by H. H. Hawley and others against the Moore-De Grazier Company, the H. H. Hawley Company, and others. To review judgment for defendant the Hawley Company on its cross-action against the Moore-De Grazier Company, the latter brings error.</p>

C. Adams, Judge. Action by W. B. Roan for the death of his wife and son against Walker D. Hines, Director General of Railroads. From a judgment for plaintiff, defendant appeals.

<p>1. Vendor and purchaser <&wkey;>144(1)— Offer of vendor relative to release of lien sufficient.</p> <p>Where the vendor of a lot secured release of an outstanding lien from the proper party, deposited it and the deed of conveyance to the vendees in bank, and he and his agent offered to deliver the release with the deed on payment of the balance of the consideration, and to put it on record and to put it in the abstract, such offer was an offer of substantial compliance with the contract of sale and sufficient; the registration of the release and supplementing of the abstract to show it as required by contract being mere clerical acts.</p> <p>2. Vendor and purchaser &wkey;>34l (2) — Plaintiffs cannot recover payment of purchase money on other contract not made basis of suit.</p> <p>In suit by the purchasers of property against the vendors to recover purchase-money payment, if the pleadings were such that defendant vendors were permitted to show that the written contract which plaintiffs sued on was never executed as alleged by plaintiffs, plaintiffs, under their present pleading, could not recover on some other contract, though similar in some of its terms, but not made the basis of a suit, as there would in such case be a variance between allegations and proof.</p>

E. L. Roy, Judge. Action by Nick Papageorge and others against the Cooks’, Waiters’, and Waitresses’ Local Union and others. From judgment for plaintiffs, defendants appeal.

<p>,1. Master and servant &wkey;o2l — Arbitrary discharge not authorized by contract for satisfactory service.</p> <p>Where the master, contractor, or employer retains no absolute right to discharge an employee for unsatisfactory work to' him, but the employee merely contracts to give satisfaction in his work, and no absolute right of discharge is reserved, the employee is entitled to have the good faith of any act of discharge determined through the intervention of the courts; the employee’s agreement to perform satisfactory service not giving the employer an arbitrary right of discharge without cause.</p> <p>2. Master and servant <&wkey;40(l)— Employee questioning honesty of discharge has burden of proof.</p> <p>When a contract of employment gives the employer the right to discharge, he may exercise it, but the employee may call the honesty and good faith of his act in question; the burden being on the employee to prove Ms case by the preponderance of the evidence.</p> <p>3. Evidence <&wkey;47l (2) — 'Testimony as to conclusion that plaintiff’s services were unsatisfactory to witness properly excluded.</p> <p>In an action by an employee claiming to have been wrongfully discharged, refusal to permit a witness to , state as a conclusion that plaintiff’s services were unsatisfactory to him held not erroneous.</p> <p>4. Appeal and error <&wkey; 1058(2) — Exclusion of witness’ conclusion harmless, where he was allowed to testify fully as to facts.</p> <p>In an action by an employee claiming to have been wrongfully discharged, refusal to permit a witness to state as a conclusion that plaintiff’s services were unsatisfactory to him was rendered harmless to defendant employer by- the witness being allowed to testify fully as to facts giving the reason why plaintiff was discharged.</p> <p>5. Master and servant <&wkey;40(2) — Evidence of abusive remarks concerning former employer inadmissible.</p> <p>In an action by an employee claiming to have been wrongfully discharged, testimony as to plaintiff’s abusiveness in speaking of his former employer was properly excluded, being immaterial to any issue.</p> <p>6. Master and servant <&wkey;4Q(2) — Evidence of prices obtained inadmissible.</p> <p>In an action by an employee claiming to have been wrongfully discharged, evidence offered by defendant employer, operating a peanut mill, that a shipment of peanuts which plaintiff employee personally bought had been hulled out and the employer had tried to sell them, but was unable to get the price of No. l’s for them, held properly excluded as immaterial.</p> <p>7. Master and servant <&wkey;4l (I) —Employee wrongfully discharged cannot recover for damages beyond' trial.</p> <p>In an action for wrongful discharge, plaintiff employee cannot recover for damages beyond the time of trial.</p> <p>8. Master and servant <&wkey;42 (I) — Damages for wrongful discharge difference between salary and actual .earnings in other employment.</p> <p>The measure of damages of an employee wrongfully discharged is the difference in money, if any, which he would .have earned under his contract of employment from the date of discharge up to the date of trial, and the money, if any, that he actually earned in other employment, using reasonable diligence to find such employment.</p> <p>9. Appeal and error <&wkey;1050(1) — 'Testimony of discharged employee that no one had promised him future employment harmless to employer.</p> <p>In an action by an employee claiming to have been wrongfully discharged, testimony of plaintiff employee that none of the persons he had worked for had promised him any future employment was harmless to defendant employer, the case haying been submitted on special issues.</p>

<p>Error from District Court, Eastland County ; E. A. Hill, judge.</p> <p>Action by T. J. Morris and another against W. C. McGough and wife. Judgment for defendants, and plaintiffs bring error.</p>

P. Alexander, Judge. Suit by the Texas Grain & Hay Company against the Strawn Merchandise Company. Prom a judgment overruling defendant’s plea of privilege to be sued in the county of its residence, defendant appeals.

Suit by E. E. Hunter and others as residents and taxpayers of Johnson County, Tex., against Whiteaker & Washington and others. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from District Court, Tarrant County.</p> <p>Suit by the Ered Miller Brewing Company against E. D. Coonrod. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Galveston County; H. C. Hughes, Judge.</p> <p>Suit by Joseph Nussbaum against the American National Insurance Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Partition <s=>70 — Refusal of defendant’s requested peremptory charge held proper.</p> <p>In a suit to recover an interest in, and for partition of, land, evidence held such that it was not error to refuse a requested peremptory charge for the defendants.</p> <p>2. Deeds <§=>181 — 'Where community property was deeded to grantee’s wife whose name was erased and that of another entered, the deed was destroyed and title remained in grantee.</p> <p>Where land was purchased as the community property of plaintiff and his wife and the deed was made to her and subsequently her name was erased and that of D. substituted, D.- took no title in himself, and the deed was simply destroyed, so that, notwithstanding deed by D. to children of plaintiff and his wife, the title remaining in plaintiff’s wife and upon her death the land passed one half to plaintiff and the other half to the children then living, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2469; and whatever opinion plaintiff might have had as to the alteration as putting title in D., or the deed from D. to the children as conveying title to them, and however long or much he might have acquiesced in the supposed condition of the title, would not effect a conveyance of the title to the children.</p> <p>3. Partition <§=>95 — Failure to include all the land held not to prevent decree being final.</p> <p>That there was no disposition of some of the land would not prevent from being final a decree conforming with the prayer of the petition in the division of the land which followed a former agreement of the parties for partition.</p>

<p>Appeal from District Court, Camp County; J. A. Ward, Judge.</p> <p>Action by Mrs., Maggie Smith against the City of Pittsburg and others.' Prom judgment for plaintiff, defendants appeal.</p> <p>A sewer system was built and completed by private parties and then' purchased and taken over, in August, 1915, and ever since operated by the city of Pittsburg, a municipal corporation under the general laws of the state. The septic tank is located outside of the city limits and within 300 or 400 yards from the home of the appellee. The outflow of the septic tank finally empties into a branch about 3 yards distant from the waste pipes, which runs within 75 yards of appel-lee’s home and on through her farm and pasture. And the appellee brought the suit for damages occasioned by, and to have abated by injunction as a nuisance, the negligent operation and, maintenance of the septic tank. It is alleged that “said septic tank is too small to accommodate the number of water-closets connected thereto.” The injury to plaintiff, as alleged, consists: (1) In polluting the stream used by her for domestic and stock purposes;' (2) in decreased value of the home and farm; and (3) in personal discomfort and injury to health from offensive odors and insects. The defendants answered by general denial, and specially pleaded the statute of two years limitation as to damages, and further that on April 15, 1915, before the construction of the septic tank, the plaintiff in writing, for a valuable consideration, consented to the erection of the tank and released the city from all claims for damages -arising from the operation thereof, and is now estopped from enjoining the operation of the tank. The plaintiff by supplemental petition made reply in avoidance of the defendants’ answer.</p> <p>The case was tried before the court, and judgment was entered denying plaintiff a recovery of damages, but awarding injunction permanently restraining tbe city of Pitts-burg as follows:</p> <p>“That the operation of the septic tank as well as the pollution of the waters by the emptying of its contents into said stream should be abated and enjoined. It is therefore ordered and adjudged by the court that the city of Pittsburg, its mayor, aldermen, and their successors in office and their agents and employees, be and are hereby perpetually enjoined and restrained from emptying or permitting the emptying the contents of the said septic tank located and described in plaintiff’s petition into the stream that runs across plaintiff’s land, or from emptying or permitting the emptying thereof so that the said refuse shall make its way into said stream so as to cross plaintiff’s land, as hereinafter described, or from otherwise polluting or permitting the pollution of the waters of said stream by said septic tank. It is further ordered, adjudged, and considered by the court that the septic tank likewise is a nuisance in that it gives off foul odors and offensive odors permeating plaintiff’s home and rendering it unbearable and prevents her proper enjoyment thereof, and the defendants aforesaid are further enjoined and restrained from the maintenance thereof or to permit the maintenance thereof as now located and open as now operated and maintained, that is, on the land where it is now located or on any other land that will cause the emptying thereof into the stream so as to run across plaintiff’s land in such manner as to pollute the waters on plaintiff’s land.”</p> <p>The judgment further gave the city until April 1, 1921, in which to remedy the maintenance in a way not to be a nuisance.</p> <p>According to the special findings of fact made by the. trial judge:</p> <p>(1) The city of Pittsburg has about 2,500 inhabitants, and the business and residence properties, to the number of about 100 patrons, and the school, jail, and courthouse buildings are connected with the sewer; and (2) the city of Pittsburg has tried to eliminate the objectionable features of the sewer system, but has not been able to do so; and (3) “the liquid that leaves the said sewer and empties into said branch is very dark, nearly black, and has a very offensive odor, and can be smelled a long distance from the tank, at any time the direction the wind is blowing, and in the early morning and late afternoon and evening the same emits foul and offensive odors that permeate the atmosphere for the distance of 200 and 300 yards from the said tank and the branch, near the point of discharge, and the branch can be smelled to the plaintiff’s house in the morning and afternoon and evening, when the wind is blowing, and if the wind is blowing from the north, northeast it can be smelled at all times of the day, to the plaintiff’s house”; and (4) “the odors thrown off from the discharge from the said system by being discharged at the place it is discharged very much impairs the comforts of the plaintiff’s home, the usefulness of her premises and pasture, that the water going through her pasture is not fit for stock water, and that but for the discharge of the said waste into the said branch above the home of the plaintiff the water would be good for stock purposes, and plaintiff’s home would not be thus affected to her discomfort”; and (5) “that the plaintiff signed an agreement that the water from the said septic tank might be discharged into the said branch, and she waived damages by reason thereof in consideration of the sum of $1 and the further consideration that the same would be maintained and operated in a reasonably sanitary condition. The $1 was not paid to her at the time, but a city warrant for that sum was mailed, and she has not cashed it, but kept it and produced it on the trial of the case.”</p> <p>The court made the following conclusion of law:</p> <p>“I conclude that the said sewer system as maintained and operated is an abatable nuisance, and that plaintiff .suffers considerable discomforts and inconveniences therefrom. The plaintiff having specially waived claim for damages and only seeking to abate said nuisance, she is entitled to the relief sought.”</p>

<p>Appeal from District Court, Franklin County; J. A. Ward, Judge.</p> <p>Suit by J. L. Rutherford against J. M. Wilkins. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Grayson County ; Silas Hare, Judge.</p> <p>Action by the Gilmer Oil Company against the Pierce Oil Corporation. Judgment for plaintiff, and defendant appeals.</p>