Volume 231 — South Western Reporter

Action by Elder Dempster & Co., Limited, against Weld-Neville Cotton Company, Incorporated, to recover damages for breach of two contracts. A judgment for plaintiff was reversed by the Court of Civil Appeals, and the cause remanded for retrial (204 S. W'. 678), and plaintiff brings error.

<p>1. Witnesses '<©=3150(2) — Fraudulent declarations of lessee since deceased held admissible in action against assignees to cancel lease.</p> <p>In action against assignees of oil and gas lease to cancel lease, plaintiff lessor was not prohibited by reason of Rev. St. 1911, art. 3690, relating to testimony as to declarations by a decedent from testifying as to fraudulent declarations by lessee, since deceased and against whom the suit had been dismissed, made at the time of the execution of the lease in reference to the term for which the lease was taken and as to the amount of rentals agreed to be paid; the lessee having prepared the lease.</p> <p>2. Evidence <©=>434(6) — Testimony held not to vary written instrument.</p> <p>In action to cancel an oil and gas lease, it would not be varying the instrument by parol testimony to permit lessor to testify that lessee prepared the lease to run for a period of six months, and after the delivery of the lease struck out the words “six months’’ and inserted the words “ten years.”</p> <p>3. Evidence <©=>135(1)— No error in refusing evidence of other fraudulent transactions.</p> <p>In action to cancel oil and gas lease on ground of alterations in instrument after delivery, court did not err in refusing to permit defendant assignees to give evidence of other leases taken by lessee with other parties in the same vicinity; the purpose being to show that the same erasures and interlineations appear in them as in the lease in question.</p> <p>4. Appeal and error <©=>1066 — Reversible error to submit issue without evidence to support it.</p> <p>In action to cancel oil and gas lease on ground that alterations were made after delivery, it was reversible error to submit to the jury issue as to whether interlineations were made before or after the execution and delivery of the lease by striking out a six-months term and inserting a ten-year term, the fact clearly appearing, from the instrument itself, that there was no six-month term in the lease except as to the payment of rentals, and such term was not erased and no term inserted instead, the issue being without evidence to support it.</p> <p>5. Mines and minerals <©=>59 — Issue submitted held without basis in pleading in suit to cancel lease.</p> <p>An issue whether lessee represented to lessor that lease was only for a period of six months was without basis in the pleading, and should not have been submitted in an action to cancel the lease, where petition alleged the agreement was that the term of the lease was to be for only six months, and that lessee assured lessor that the lease had been so prepared; there being no allegation that lessee represented to lessor that the lease was only for a period of six months.</p> <p>6. Mines and minerals <S=>58 — Fraudulent statement as to- term ground for avoiding lease.</p> <p>Where lessee drew up an oil and gas lease, and lessors relied on his statement as to the time the lease would run, and believed that the lease was written for only six months instead of ten years, and, to induce that belief, lessee pointed out a six months’ clause in the lease as the term for which it was to run and remarked, “I will make it for six months so you will understand it,” and lessors believed the six months’ time had reference to the time that lease was to run and acted upon it, hut in truth it had reference instead to the payment of rentals, and not to the time the lease was to run, and though lessor might have ascertained by the exercise of ordinary care the application of the six months’ clause, such representation would be sufficient ground if promptly acted upon to avoid the lease.</p> <p>7. Mines and minerals ©==>58 — Lessor estopped to deny validity of lease fraudulently obtained.</p> <p>Lessor under oil lease was estopped to set up fraud of lessee in obtaining the lease by telling him that it was for six months instead of ten years, where he accepted rentals after the expiration of the six months knowing that the lease had been assigned, and such was true even though the lease was altered after execution and delivery, changing the term.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by E. O. Brown and wife against the City Service Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Appeal and error <§=a93I (I) — Viewed in aspect most favorable to appellee.</p> <p>Evidence must be viewed in its aspect most favorable to appellee.</p> <p>2. Statutes <®=^II7(8) — Amendatory statute making natural person liable for death caused by agent, invalid.</p> <p>Acts 33d Leg. (1913) c. 143 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4694), amending Rev. St. 1911, art. 4694, is invalid in so far as it undertakes to make a natural person liable in damages for a wrongful death caused by his agent or servant; the change not being within the scope of the caption of the amending act.</p> <p>3. Death <@=^33 — -Joint tort-feasors liable.</p> <p>Liability for wrongful death under Rev. St. 1911, art. 4694, is not limited to person whose hand inflicted the death wound, but extends to his joint tort-feasor.</p> <p>4. Torts <⅜=>22 — Joint tort-feasors Jointly and severally liable.</p> <p>Joint tort-feasors are jointly and severally responsible for the consequences of their wrongful act.</p> <p>5. Torts <$=^22 — ‘“Joint tort-feasors” defined.</p> <p>When two or more persons participate in concerted action to commit a common tort and accomplish their purpose, they become “tort-feasors.”</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Joint Tort-Feasors.]</p> <p>6. Death <®=»75 — Evidence held to show concerted killing.</p> <p>In an action against father and son for death of plaintiff’s husband shot by son, evidence held to show concerted action between father and son to wrongfully kill the husband.</p> <p>7. Death <®=>33 — Father held liable as “joint tort-feasor” with son who shot deceased.</p> <p>Where son shot deceased after there had been concerted action between father and son to wrongfully kill deceased, the father was a “joint tort-feasor” and was equally liable in damages for decedent’s death under Rev. St. 1911, art. 4694.</p>

Pharr, Judge. Suit by A. M. Brady against John D. Hill. Judgment for plaintiff and defendant appeals. Alleging that appellant promised in writing to pay him in Hopkins county sums aggregating $395 and had failed to do so, ap-pellee sued appellant in the county court of said county. The latter 'by a sufficient plea filed at a proper time asserted a right he claimed to have the cause transferred to Cameron county, where he resided, for trial.

<p>Appeal from District Court, Gillespie County; N. T. Stubbs, Judge.</p> <p>Action by P. J. Maier against Fritz Lan-gerlians. Erom judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Pleading <@=>236(3)— Permitting plaintiff to file trial amendment discretionary with court.</p> <p>Permitting plaintiff to file trial amendment to petition is within discretion of the trial court, subject to correction ' for any abuse thereof.</p> <p>2. Trial <@=351 (5)—-Refusal of requested special issue held proper, in view of special issue submitted'.</p> <p>Refusal of requested special issue, “At the time defendant entered into the contract to sell to plaintiff the rooming house and property in question, did defendant have authority from the owners of said property to sell the same?” held' proper, in view of submitted special issue as to “whether defendant had authority from the owners to sell upon the particular terms of the contract made by him with E. (plaintiff).”</p> <p>37Appearand error <@=704(1)—No review of refusal of special issue without record showing issues submitted.</p> <p>Assignments of error complaining of refusal to submit requested special issue will not be considered, where no record references are given in the statement under the assignment, either as to the issues given or the issues tendered, and where the appellate court is unahle to determine from the brief whether or not the issue tendered was embraced in the special issues actually given.</p> <p>4. Appeal and error <§=>725(2), 742(3), 743(1) —Assignments of error complaining of overruling of exceptions held insufficient ¡for consideration.</p> <p>Assignments of error complaining of action of court in overruling special exceptions, without a statement thereunder and without the special exceptions being set out, in substance or otherwise, and without record references being given or a showing made as to action taken on the exceptions, will not be considered.</p> <p>5. Appeal and error <§=>742(5) — Assignment of error submitted as a proposition held too general for consideration.</p> <p>Assignment of error submitted as a proposition, without being followed by a specific proposition, that “it was error for the court to submit tiie charge to the jury at failed and refused to instruct the jury upon whom rested the burden of proof” without record references, and without setting out the charge given by the court, held too general for consideration.</p> <p>6. Trial <§=>255(3) — Failure to instruct on burden of proof not error, in absence of request therefor.</p> <p>Failure to charge jury as to burden of proof held not error, in absence of a request for an instruction covering the omission.</p>

O. Beard, Judge. Action by Mrs. Clara Allen, administratrix, against Lancaster and Wallace, Receivers of the Texas & Pacific Railway. Judgment for plaintiff, and defendants appeal. T. 0. Allen was a locomotive fireman in the employ of the receivers of the Texas & Pacific Railway, and while operating a passenger-train was killed by the derailment of the engine, occurring near the station of Texar-kana on September 5, 1917.

<p>1. Wills <§=»665 — Right of devisee not affected by his statement before testatrix’s death nor by subsequent belief of-one entitled to benefit under condition of will.</p> <p>One to whom a will devised land with provision that his sisters were to have a home there when needed, and that if he did not comply with the condition, but refused to give them a home when sick or out of employment, the land should be divided equally between them, having after death of testatrix accepted under the will, Ms interest in the land was not affected either by any statement of his before testatrix’s death, when his rights were not fixed, that Ms sisters should not have a home there, nor by the fact that after such death one of them, who would have had a right to go there for a home, did not seek it, believing from what he had so previously said that it would be refused.</p> <p>2. Wills <§=>658 — Devise held to vest fee on condition subsequent.</p> <p>A will, which gave land to testatrix’s nephew “H. (with express understanding that Ms sisters are to have a home there whenever they need one, I put this in so my brother’s children will all have a home to go to should misfortune come to them), to have and to hold Ms heirs and assigns forever provided he comply with the conditions herein mentioned, but if he refuses to give them a home (I do not mean he is to support them, but a home free of charge when sick or out of employment) it shall be divided equally between them,” held not to create a condition precedent, but to vest the fee in the nephew, on a condition subsequent, a defeasance in case of a refusal of a home when needed and requested; Rev. St. art. 1106, providing that an estate devised shall be deemed in fee simple if a lesser lie not limited by express words or does not appear by construction or operation of law, and the words in parentheses being part of the defeasance clause.</p> <p>3. Wills @=>665 — Word “refuse” in condition of will cannot be construed as “fail.”</p> <p>As words can be changed in a will only when it will effectuate a clearly apparent intent of testator, the word “refuse” in a devise with provision that, if devisee refuse a home to his sisters when sick or out of employment, the land shall be divided equally between them, cannot be changed to “fail.”</p>

<p>Error from Dallas County Court; W. L. Thornton, Judge.</p> <p>Action by Paul Cooper against the Great Southern Oil Refining Association and others. To review judgment for plaintiff, defendant Association brings error.</p>

<p>Divorce <§=>130 — Evidence held not to show husband’s cruelty.</p> <p>In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4633, requiring full and satisfactory evidence, in divorce proceedings, evidence held not to support decree granting wife a divorce for cruelty.</p>

<p>1. Continuance <®==>26(11) — Where no commission was issued, although adversary party waived its issuance, there was not due diligence.</p> <p>Where no commission was issued and placed in the hands of an officer authorized to take depositions, the party asking for a continuance to procure witness’ evidence cannot be said to have used due diligence, although his adversary waived the issuance of a commission.</p> <p>2. Appeal and error <S=o966(l) — Continuance <§=>26(l) — Where application for continuance shows failure to use means for procuring testimony, it is addressed to the court’s discretion.</p> <p>When an application for continuance shows that the means provided by law to secure testimony have not been used, the application is addressed to the sound discretion of the trial court, and, unless it clearly appears that such discretion has been abused, the case should not he reversed for overruling the application.</p> <p>3. Continuance @=>46(5) — Application addressed to discretion of court should show applicant expected to procure testimony by next court term.</p> <p>An application for continuance, ■which is not statutory, and therefore addressed to the court’s discretion, should state that the applicant expected to procure the testimony by the next term of court; otherwise denial of continuance is not error.</p>

<p>Appeal from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Suit by R. O. Kawlings against Jacob H. Ediger. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from El Paso County Court at Law; J. M. Deaver, Judge.</p> <p>Suit by Grover Mulliken against H. F. El-mendorf. . Judgment for plaintiff, and defendant appeals.</p>

<p>Insurance 133(1)— Life insurance policy provision that, if insured die within six months, only one-half of amount will be'paid, contravenes statute prohibiting settlement for less than face of policy.</p> <p>A condition in an insurance policy that, if insured’s death occurred within six calendar months from its date, the beneficiary would receive only one-half of the amount mentioned therein, and the full amount if death occurred thereafter, contravened Rev. St. 1911, art. 4742, subd. 3, providing that no life insurance policy shall contain any provision for settlement for less than the,amounts insured on the face of the policy, plus dividend and less indebtedness and premiums.</p>

<p>1. Courts <§=?169(3) — Total of items comprises amount in controversy in county court.</p> <p>Under Const, art. 5, § 16 (Rev. St. art. 1764), the county court has no jurisdiction of causes where the matter in controversy exceeds $1,000, exclusive of interest, the matter in controversy not being the amount prayed for or the amount stated generally in the petition, where the items going to make up the total value of damages are specifically stated, and the aggregate sum differs from the amount prayed for or stated generally, the total of the items specifically set out comprising the “matter in controversy” in case of such conflict.</p> <p>2. Appeal and error <®=oi 178(8) — Court, where jurisdictional amount exceeded only by inadvertence, will remand for amendment.</p> <p>Ordinarily, in cases of appeals from the county court, which had-no jurisdiction on account of the amount of the matter in controversy, the proper practice is to reverse the judgment and remand, with instructions to the county court to dismiss the cause, hut where it was only by amended petition that the jurisdictional amount was exceeded, and defendant appellant, by exception, and in the motion for new trial, raised the jurisdictional question only in the most general terms, while the excess in amount was hidden by a miscalculation due to inadvertence, the Court of Civil Appeals will not order dismissal, but merely remand, that plaintiff may amend if he so desires.</p> <p>3. Railroads <©=351/2, New, vol. 6A Key-No. Series-Judgment fixing lien against properties of dismissed defendant owning road under federal control erroneous.</p> <p>After dismissal of defendant railway company from the suit which continued against defendant Director General of Railroads, it was error for the trial court to render judgment fixing a lien against the properties of the railroad to secure payment of judgment rendered against the Director General.</p>

<p>1. Appeal and error <§==>1071 (6) — Failure to embrace undisputed facts in findings harmless.</p> <p>Failure of trial court to expressly embrace undisputed facts in his findings, if error at all, was harmless.</p> <p>2. Fraudulent conveyances <§==>58 — Intent to defraud not necessary.</p> <p>If a conveyance of land was voluntary and not upon a consideration deemed valuable in law and the grantors did not have other property within state subject to execution sufficient to pay the debt, the conveyance was void under the statute, whether or not it was the intent of the grantor to defraud.</p> <p>3. Fraudulent conveyances <$==>220 — Immaterial that creditor’s note was secured by chattel mortgage in action to set aside conveyance <• of land.</p> <p>In action upon promissory note for foreclosure of attachment lien upon land claimed to have been fraudulently conveyed, it was immaterial that the note sued upon was secured by chattel mortgages, in the absence of a showing that such mortgages gave any real security for the note or that anything was realized thereon.</p> <p>4. Husband and wife <$==>254 — Property acquired from rents and revenues of wife’s separate property constituted community.</p> <p>Property paid for in 1901 out of the rents and revenues of the separate property of wife in part, and joint earnings of herself and husband, and in part by her children by a prior marriage, constituted community.</p> <p>5. Husband and wife <$==>268(2) — Partition did not affect community property as against creditor.</p> <p>Whatever may have been the effect of a voluntary partition and division of community property among children, wherein husband was given a child’s part for his share, and a child later acquired the land, as between the parties themselves, it could not have the effect to change the status of the property from community to separate as to creditors without notice.</p> <p>6. Fraudulent conveyances <§⅛~>76(1) — $20 consideration held nominal.</p> <p>A consideration of love and affection and a sum of $20 for land conveyed was merely a nominal consideration which was not valuable in law as against a creditor, where it was grossly inadequate in proportion to the value of the land conveyed.</p>

R. Castle, Judge. Suit by the Tyler Commercial College against the Sinton State Bank. From a judgment for plaintiff, defendant appeals. One Gerdes, residing in San Patricio county, purchased of appellee a “scholarship” entitling him to instruction at its college in Tyler, in Smith county, and to certain stationery for use in connection with such instruction.

<p>Sales ⅞=>175 — Purchaser could not cancel items of order and then sue for nondelivery.</p> <p>Buyer under contract could not cancel certain items of his order and then sue for damages for failure to deliver such items.</p>

(Appeal from District Court, El Paso County; Ballard Coldwell, Judge. Action by the E. S. Ainsa Company, Incorporated, against Harry Landa and others. From an order overruling plea of privilege filed by defendants to be sued in the county of their residence, they appeal.

. Appeal from District Court, McLennan County; Erwin J. Clark, Judge. Action by J. O. Dool against the City of Waco and others. Judgment for defendants on a directed .verdict, and plaintiff appeals.

Action by the Texas-Mexican Railway Company against the Rio Grande & Eagle Pass Railway Company. Judgment for plaintiff was reversed, and judgment rendered for defendant by the Court of Civil Appeals (173 S. W. 236), and plaintiff brings error.

Action by Mrs. Mary L. Waller Rea and husband against Mrs. P. L. Luse and husband, in which defendants set up a cross-action interpleading A. E. Luse as one of the defendants. Judgment for defendants on the cross-action was reversed, and the cause was remanded by the Court of Civil Appeals (207 S. W. 942), and defendants appeal.

Suit by Mrs. I. R. Holmes and others against Jos. A. Tennant. From a judgment of the Court of Civil Appeals (211 S. W. 798) affirming a judgment for defendant, plaintiffs bring error.

Action by Charles W. Green against Nellie Hesse and another, in which, by plea, A. G. Morriss was made a party. Judgment for Nellie Hesse against said Morriss was affirmed by the Court of Civil Appeals (210 S. W. 710), and Morriss brings error.

Suit by M. G. Moore and W. H. Ratliff against the American Lumber Company and others. Judgment for plaintiffs as against all the defendants except as against the American Lumber Company, for which judgment was entered, and the other defendants and plaintiffs brought error to the Court of Civil Appeals, which reversed and remanded in part, and affirmed in part the judgment (203 S. W. 429), and the plaintiffs bring error.

Actions by the Houston Oil Company of Texas against L. N. Jordan and others, and against John W. Robbins and others, consolidated. From judgment of Court of Civil Appeals (212 S. W. 544),. affirming judgments of the district court, the plaintiff brings error.

Suit by the Temple Hill Development Company against Eric A. Lindholm and wife. Decree for defendants, and plaintiff appealed to the Court of Civil Appeals, which affirmed the judgment (212 S. W. 984), and the plaintiff brings error.

Action by the First National Bank of Na-vasota against R. A. Barker. Judgment for intervener, J. S. Todd, was affirmed by the Court of Civil Appeals (212 S. W. 219), and plaintiff brings error.

<p>1. Vendor and purchaser <§=»274( I)— Delivery of vendor’s lien note to representative, together with the release, held not negligence on the part of the holder.</p> <p>Where plaintiff holding a vendor’s lien note against defendant sent a release to the representative of a loan company to take up the note in making a loan on the land to the amount of the difference between the purchase price of a part thereof sold to a third party and the indebtedness to plaintiff, and the representative procured checks both from the third party and from defendant, but misappropriated them, a judgment for defendant cannot he sustained on the ground that plaintiff’s negligence in delivering the release was the proximate cause of the injury to defendant, where the representative did not use it to obtain defendant’s check, which was given solely because the third party’s attorney approved the transaction.</p> <p>2. Bills and notes <⅜=»452( I) — Failure of creditor to notify debtor that debt had not been paid not negligence.</p> <p>Failure of creditor bank to notify its debtor that a note had not been paid until after the death of one to whom the debtor had intrusted funds for its payment and who had misappropriated' them, held not actionable negligence available as a defense in an action on the note.</p> <p>3. Principal and agent ⅞=»70 — Same person may be appointed agent for collection and payment by different parties.</p> <p>Where a loan was made to take up a vendor’s lien note, and the owner appointed a representative of the loan company to make payment, the holder of the note may appoint same person as its agent to receive payment; the interests not being adverse.</p> <p>4. Principal and agent <®=»92(2) — Payment of note is complete when funds have reached hands of agent authorized to receive it.</p> <p>The payment of a note or other obligation is complete when money intended for its payment o^ discharge has reached the hands of an agent authorized to receive it.</p> <p>5. Principal and agent 124(3) — Whether representative of loan company- was agent of holder of vendor’s lien note authorized to receive payment of the note held for the jury.</p> <p>Where a landowner, who desired to take up vendor’s lien note to free a portion of the property from the lien, appointed the agent of a loan company to make payment and the holder of the vendor’s lien sent the note accompanied by a release to the agent, who misappropriated the funds, the question, in an action by the holder of the note, whether such agent was agent of the holder authorized to receive payment of the note, held, under the evidence, for the jury.</p>

<p>1. Railroads <®=348(8) — Driver of auto struck held not conclusively shown to have seen train in time.</p> <p>Evidence in action for collision of train with auto truck held not to conclusively show that the driver saw the train in time to stop before going on the crossing, and so was guilty of contributory negligence.</p> <p>2. Railroads <®=^346(5) — Burden of showing contributory negligence on defendant.</p> <p>The law presumes that one killed at a railroad crossing was doing whatever was reasonably necessary for his own safety, so the company sued for his death muse prove he was not, to relieve itself of the consequences of its failure to give the crossing signal.</p> <p>3.Railroads ®==>348(6) — Jury may consider evidence most favorable to plaintiff.</p> <p>On the issue of contributory negligence of deceased, the jury had the right to consider the evidence most favorable for plaintiff from the position of deceased just before and at the moment of the collision, rejecting all evidence most favorable to defendant.</p> <p>4. Railroads <®=350(I6) — Failure to look and listen not conclusive of contributory negligence.</p> <p>Whether one killed at a railroad crossing was guilty of contributory negligence is an issue of fact under all the circumstances, not foreclosed necessarily by establishing that he did not look or listen.</p> <p>5. Trial <g=»240 — -Charge on ordinary care of deceased held argumentative.</p> <p>Charge that “no one is required to anticipate that another will fail to obey the law, and you are therefore charged that in passing on the issue” whether deceased “exercised ordinary care in approaching the crossing, he had the right to expect that defendant’s” trainmen would give the required crossing signals, is argumentative.</p> <p>6. Appeal and error @=31064(1) — Argumentative charge on ordinary care of deceased held prejudicial.</p> <p>It is misleading in a crossing accident case, in which there are sharply contested issues of negligence and contributory negligence, relative to whether signals were given and as to whether one of ordinary prudence in the position of deceased would have stopped his truck before going on the crossing, to give the argumentative charge that “no one is required to anticipate that another will fail to obey the law, and you. are therefore charged that in passing on the issue” whether deceased “exercised ordinary care in approaching the crossing, he had the right to expect that defendant’s” trainmen would give the required crossing signals; and its effect would not be necessarily counteracted by the fact that the case was submitted on special issues, or that the jury found that deceased looked and listened for the train.</p>

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Suit by Richard Kieschnick and wife against Horace Martin and others. Decree dismissing the cause was affirmed by the</p> <p>Court of Civil Appeals (208 S.’ W. 948), and plaintiff brings error.</p>

<p>Error to Court of Civil Appeals of Eighth Supreme Judicial District.</p> <p>Injunction suit by J. E. Millhollon against the Stanton Independent School District. Relief denied, and plaintiff appealed, defendant assigning cross-errors. Judgment affirmed by the Court of Civil Appeals (221 S. W. 1109), and plaintiff brings error.</p>

<p>Error to Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>Suit by W. S. Pendleton against Silas Hare, administrator of Samuel Bailey. A judgment for plaintiff was reversed by tbe Court of Civil Appeals (214 S. W. 948), judgment being rendered for defendant, and plaintiff brings error.</p>

<p>Appeal from Court of Civil Appeals of Fourth Supreme Judicial District.</p> <p>Suit by Mary I. Richardson and another, executors of Asher Richardson, against the Bermuda Land & Live Stock Company. From a judgment of the Court of Civil Appeals affirming a judgment in favor of the defendant (210 S. W. 746), plaintiffs appeal.</p>

<p>1. Deeds <@==>166 — Consent to placing mechanic’s lien upon property held not waiver of condition in deed.</p> <p>Consent by a grantor that grantee place a mechanic’s lien upon the land was not a waiver of a condition in the deed that a gin and mill be constructed and operated, the company placing the mechanic’s lien upon the 'land being charged with knowledge of the conditions in the deed, and that its lien was subject to be defeated by a breach of such condition.</p> <p>2. Deeds <@=>156 — Right of re-entry after condition subsequent broken not assignable at common law.</p> <p>The right of re-entry after condition subsequent broken is not assignable under the English common law.</p> <p>3.Deeds <@=>156 — Right of re-entry after condition subsequent broken assignable.</p> <p>The question of assignability of the right of re-entry after condition subsequent broken should be governed by the same rule which is applied to the assignability of an interest in land in the adverse possession of another, and the right of re-entry after condition subsequent broken is assignable in view of Rev. St. 1911, art. 7733(4), notwithstanding the act of 1840, which makes the common law of England the rule of decision in the state.</p>

<p>1. Action <§=>48(l)— Rule against muitifari-ousness not applied where the causes of action grow out of the same transaction.</p> <p>The rule against multifariousness, the improper joining in one suit of distinct and independent matters, is to be construed' with, and so as not to restrict, the policy of avoiding a multiplicity of suits; so that the matters relied on for recovery in the petition growing out of the same transactions, exceptions to the petition on the ground of multifariousness, should not be sustained, and plaintiff put to.necessity of separate actions.</p> <p>2. Appeal and error <§=>1040 (3) — Erroneous sustaining of exceptions on ground of multifariousness not harmless.</p> <p>The erroneous sustaining of exceptions to a petition on the ground of misjoinder of causes of action, and requiring plaintiff to proceed on one only of them, is not harmless because he fails to recover on the cause tried, on the ground of insufficiency of the evidence.</p>

<p>1. Appeal and error c$=o722(l) — Appellant not restricted to assignments in motion for new trial.</p> <p>Appellant is not restricted to the assignments in the motion for a new trial, but may file assignments of error independently of those specified in such motion.</p> <p>2. Trial <©=» 181— Statute requiring objection to charge before submission to jury not applicable to peremptory instruction.</p> <p>Acts 33d Leg. (1913) c. 59, requiring an objection to the charge to be made before given to the jury, is not applicable to a peremptory instruction.</p>

<p>1. Appeal and error @=930(3) — In absence of objection, it will be presumed that special Issues conform to pleadings and evidence.</p> <p>In an action against a railway company for personal injuries sustained in a crossing accident, in the absence of any objection to the special issues submitted or request for special charges correctly submitting the issues, those submitted will be presumed to conform with the pleadings and evidence, and treating the issues submitted as embracing the only theory relied upon by plaintiff, it follows that, the jury having found plaintiff guilty of negligence, such negligence bars recovery unless the pleadings or evidence raise the issue of discovered peril, so that, under Rev. St. 1911, art. 1985, all facts necessary to support the judgment can be deemed found.</p> <p>2. Negligence @=83 — Doctrine of “discovered peril” stated.</p> <p>The doctrine of discovered peril involves the exposed condition brought about by the plaintiff’s negligence; the actual discovery by defendant’s agents of plaintiff’s perilous situation in time to avert, by use of all means at their command, commensurate with their own safety, injury to him, and the failure thereafter to use such means.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Discovered Peril.]</p> <p>3. Negligence @=119(6) — Discovered peril must be pleaded.</p> <p>To invoke the doctrine of discovered peril, it must be pleaded.</p> <p>4. Railroads @=345(1) — Issue of discovered peril held not raised by pleading.</p> <p>In action against railroad for injuries in a crossing accident, pleadings which failed to assert the actual discovery by defendant’s agents of plaintiff’s perilous situation in time to have averted the accident by the use of means at their command commensurate with their own safety are lacking in one of the essential elements of discovered peril.</p> <p>5. Judgment <§&>251 (I), 256(2) — Judgment must conform to issues pleaded; courts may not ignore findings and pass judgment.</p> <p>Judgments -must conform to issues raised by pleadings and upon which case was tried, and courts cannot . gnore jury’s findings and. render judgment upon theory-of discovered peril in an action for personal injuries in railroad crossing accident where such matter was not pleaded.</p>

<p>1. Habeas corpus <®=r>99(l) — Parent is natural guardian of his children, as respecting right to habeas corpus.</p> <p>The parent is the guardian by nature of his children, and his right to their custody is paramount, but this right may be forfeited by misconduct or lost through misfortune.</p> <p>2. Habeas corpus <3=99(3) — Interests of child prevail in proceedings for custody.</p> <p>A parent may surrender the custody of his child to a third person, and on habeas corpus proceedings by the parent to regain the custody the paramount interest of the child becomes the dominant issue.</p> <p>3. Habeas corpus <3=^85 (I) — Third person may defeat habeas corpus by father to regain custody of child by showing it is not to the benefit of the child.</p> <p>Where a parent who surrendered custody of his child to a third person brought habeas corpus to regain the custody, the third person has the burden of establishing facts necessary to overcome the legal presumption in favor of the parent's custody, but it is sufficient 'if the third person show that the best interests of the child demand that it remain in his or her custody, and it is improper to grant the parent the custody of the child, regardless of all else, unless his unfitness be shown.</p> <p>4. Habeas corpus <3=99(6) — Wishes of child of sufficient age to judge for itself should be considered in habeas corpus proceedings.</p> <p>In determining the custody of a child, its wishes, where sufficiently mature to judge for itself, should be consulted, and weighed with the other testimony, but the child’s choice is not necessarily a controlling factor.</p> <p>5. Habeas corpus <3=99(1) — Father, though suitable, is not entitled to custody of child at all events.</p> <p>Where the father of a baby on his wife’s death gave her into the custody of her maternal grandmother, who cared for the infant until she was 14, the mere fact that the father, who had married again and had other children, was a proper person to have the custody of the infant, does not entitle him to its custody, regardless of the wishes of the infant, who had became estranged from her father, stepmother, and half-sisters, and the maternal grandparent should be allowed to retain custody where for the best interests of the child.</p>

<p>1. Negligence <@=56(3)— Law of proximate cause applicable to violations of statutory and common-law duty.</p> <p>It is not the rule that violation of a statutory duty imposes liability for any injury traceable to the wrongful act, regardless of whether it might have been foreseen or anticipated; but the rule is that where the act or omission is wrongful or negligent, whether as a result of failure to observe a statutory or common-law duty, liability, in either case, is limited to proximately caused injuries, and the rules for determining proximate cause are the same in either case.</p> <p>2. Negligence <@=59 — Foreseeableness of injury as “natural and probable result” element of proximate cause.</p> <p>Eoreseeableness or anticipation of injury is a necessary element of proximate cause; and while actual anticipation is not the test, nor is it material whether the particular injury might have been foreseen, it is requisite that the injury be of such a general character as might reasonably have been anticipated and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen; the phrase “natural and probable result” meaning what should reasonably be anticipated in the light of common experience applied to the surrounding circumstances.</p> <p>3. Railroads <@=l 13(10) — Insufficient drainage held not proximate cause of drowning in flood.</p> <p>Failure of a railroad to have sufficient opening for flood water in bridging a creek as required in Rev. St. art. 6495, whereby in a not unprecedented flood its bridge was washed away, held not the proximate cause of the death of one who was drowned when thrown from a tree downstream in which he had taken refuge from the flood, when the tree was struck by the bridge washed against it by the flood waters.</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>Suit by Olga V. Knight, as guardian of the estate of Mrs. C. E. Rogers, a lunatic,.against W. T. Waggoner and another. Judgment for defendanis was reversed, and the cause remanded hy the Court of Civil Appeals (214 S. W. 690), and defendants bring error.</p>

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Suit by R. B. Haynes against the Western Union Telegraph Company. Judgment for plaintiff was reversed and judgment rendered for defendant by the Court of Civil Appeals (212 S. W. 260), and plaintiff brings error.</p>

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Trespass to try title by N. E. Laidacker against Y. K. Palmer and another. Judgment for defendants was affirmed by the Court of Civil Appeals (210 S. W. 739), and plaintiff brings error. Affirmed.</p>

<p>Error to Court of Civil Appeals of Eighth Supreme Judicial District.</p> <p>Suit by the Citizens’ National Bank of Stamford against J. H. Stevenson. Prom judgment for defendant, plaintiff appealed to the Court of Civil Appeals, which affirmed (211 S. W. 644), and plaintiff brings error.</p>

<p>1. Homestead ©=>89 — Both widow and remain-derman cannot have homestead in same land.</p> <p>A son, living with his widowed mother upon land which she claimed as her homestead, was precluded from asserting a homestead interest in the same land which she claimed as a homestead, for one claiming merely an interest in remainder is without any right to possession necessary to found a claim of homestead.</p> <p>2. Homestead <®=>84 — 'Tenants in common held to have impressed tract with homestead character.</p> <p>Where surviving widow and children, upon death of the husband and father, became tenants in common of a tract of community land of the mother and deceased, and one son lived upon the tract, and had inclosed and was using not more than 20 acres of it, and another son was living upon contiguous land which he had purchased and built a house on, and his inclosure extended onto the tract and within its compass, and upon such tract were the barn, some fruit trees, and a plot of ground not exceeding 10 acres which he was farming, the sons subjected the land to homestead purposes.</p> <p>3. Homestead ©==>84 — 'Tenants in common may impress land with homestead.</p> <p>Tenants in common may impress the tract owned in common with the character of a homestead, provided such use does not prejudice the rights of other cotenants.</p> <p>4. Homestead ©=>37 — Homestead interest of tenants in common not confined to land actually inclosed by them.</p> <p>The homestead interest of tenants in common is not confined to the land actually inclosed by them, but is coextensive with their undivided interest in the entire tract, and, so long as it is unpartitioned, it is not within their power to designate their homestead by metes and bounds.</p> <p>5. Homestead ©=>37— Inclosure of part of tract by tenants in common does hot limit their homestead to inclosed part where remainder is wild land.</p> <p>The law does not absolutely protect the entire tract of land, up to the amount of 200 acres, upon which the homestead may be located, regardless of the use to which a part of it may be devoted, but merely limits or restricts the homestead to that acreage, and the owner may, by a use inconsistent with the homestead purpose, abandon a part of that which the law would otherwise protect; but, where the uninclosed land of a tract held by tenants in common was wild, uncultivated land not used for any purpose, such use was not inconsistent with homestead purposes, so that, as to tenants in common who had inclosed part of the tract, and were living thereon as their homestead, their homestead right extended to their undivided interest in the whole tract, for, in such case, until there is an inconsistent use, the law implies an intent to use, and therefore a constructive use, of the entire tract for homestead purposes.</p>

<p>1. Appeal and error <§==>1213 — Judgment on former appeal not conclusive where pleadings and facts differ.</p> <p>Where the pleadings and facts on second trial were not identical with those on the first, the opinion and judgment of the Court of Civil Appeals on the former appeal did not so finally and fully adjudicate both the law and the facts as to justify the trial court on the second trial in striking out the answer of defendants, containing both general denial and other defensive pleas, and in rendering judgment for plaintiff without proof of any facts except the value of the rents sued for.</p> <p>2. Vendor and purchaser <§=>18(½) — Optionee did not acquire title by option contract.</p> <p>By an option contract the optionee did not acquire any title to. the land involved, but at most secured only the right to acquire an interest in the land by complying, at his election, with the stipulations on his part.</p> <p>3. Vendor and purchaser <§=>196 — Owner entitled to rents and crops until title defeated by exercise of option.</p> <p>The holder of an option contract covering land can occupy no better position than the holder of a mortgage duly recorded prior to the owner’s contract of tenancy and prior to planting of the crop; in case of a mortgage the owner of the land remains such until his title is defeated at foreclosure sale, and in the case of an option he remains the owner until the holder of the option tenders full compliance with its terms and becomes entitled to receive a conveyance in accordance therewith, the owner in either case being entitled to the rents and crops until his title is actually defeated.</p> <p>4. Crops <§=>5 — Crops pass under deed unless severed, but are personal property.</p> <p>Though annual crops, the fruits of industry, so long as they are attached to the land, pass with the deed thereto unless actually or constructively severed, yet they are for general purposes classed as personal property.</p> <p>5. Mortgages <§=>372(4)— Owner cannot sever crops or rents by reservation on foreclosure sale.</p> <p>When there is a foreclosure under power of sale in a deed of trust, the owner is not an actor in the transaction, and cannot sever the crops or rents by reserving them at the time of sale.</p> <p>6. Evidence <§=>13 — Maturity of crops matter of common knowledge.</p> <p>It is a matter of common knowledge that the cultivation of crops of com and cotton in Wharton county at the time of tender by plaintiff optionee and demand by him was practically complete, and that such crops were either partly matured or rapidly approaching maturity.</p> <p>7. Vendor and purchaser-<§=>196 — Option contract gave optionor right to reserve crops and rents.</p> <p>Option contract covering the sale of land, properly construed, held to have given the owner and optionor the right to reserve his growing crops and the rents arising out of them when the optionee elected to exercise his option.</p>

<p>1. Frauds, statute of @=3125(1) — Statute does not declare parol sale of land void, but merely provides means of resistance.</p> <p>The statute does not declare a parol contract for the sale of land to be illegal and void, but merely provides a means of successful resistance in case the statute is not complied with.</p> <p>2. Frauds, statute of @=>108(4)— Consideration need not be expressed in writing.</p> <p>It is not necessary that the consideration of a contract for sale of lands shoulu be expressed in the writing.</p> <p>3. Frauds, statute of @=> 103(1) — Deed deposited in escrow held not insufficient as memorandum.</p> <p>A deed deposited in escrow is not insufficient as a memorandum because in the form of an executed contract.</p> <p>4. Frauds, statute of @=o 108 (4) — Recital of consideration of deed in escrow held sufficient to meet requirements of statute.</p> <p>In trespass to try title where the statute of frauds was interposed as a defense and it appeared that the vendor had executed an ordinary warranty deed and deposited it in escrow to be delivered on acceptance of title and payment of purchase money, the recital of the deed as a money consideration in a specified amount held sufficient to meet the requirements of the statute, though an auto was taken in part payment prior to its execution, and the balance in cash deposited where the deed was executed and deposited.</p> <p>5. Frauds, statute of @=3127 — Decree enforces prior oral contract reduced to writing and not memorandum.</p> <p>When a sufficient memorandum of a prior oral contract has been made and signed and suit for enforcement is brought, it is the oral contract that is enforced, and not tne memorandum by which such contract is proved.</p> <p>6. Escrows @=>l — Valid contract of sale necessary to make deposit of deed a genuine “escrow.”</p> <p>A valid contract of sale is necessary to render the deposit of a deed in pursuance of the same a genuine “escrow” (citing Words and Phrases, Escrow).</p> <p>7. Escrows <8=^8 (2) — Deposit of deed sufficient to meet statute of frauds held an irrevocable escrow.</p> <p>Where there is a prior verbal contract of sale, and the recitals in the deed placed in escrow, in themselves or in connection with other writings submitted therewith, meet the requirements of the statute of frauds, the deed so deposited is a genuine escrow, and therefor irrevocable, and the prior, verbal contract is thereby rendered enforceable.</p> <p>8. Specific performance <8=3(6 — Ail circumstances must be taken into consideration in determining whether remedy inequitable.</p> <p>All circumstances in evidence must be taken into consideration in determining whether specific performance in a given case would be inequitable.</p> <p>9. Specific performance <8=> 121 (3) — Evidence insufficient to show that enforcement for contract of sale would be inequitable.</p> <p>In a suit for trespass to try title and for specific performance of a contract for the sale of land at the price of $4,500, the land being alleged to be worth $6,000 and defendant’s rental interest in the crops worth $1,500, and there being an incumbrance for unpaid purchase money, evidence held insufficient to show that a decree for specific performance would be inequitable.</p>

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Suit by James Clark and others against the Texas Co-operative Investment Company. Judgment for plaintiffs, and the defendant appealed to the Court of Civil Appeals, which reversed and rendered judgment for defendant (212 S. W. 245), and plaintiff named brings error.</p>

<p>I.Trial <@=>26f — Requested instruction not technically correct held to require correct instruction.</p> <p>In an action brought against defendant as seller for losses resulting from cattle being diseased, defended on the ground that defendant acted merely as plaintiff’s agent, a requested instruction presenting such defense, while not technically correct in every particular, held so nearly s.o as to require the court to give a proper charge on such defense.</p> <p>2. Fraud 13(3) — Belief of party misrepresenting fact unimportant.</p> <p>The fact that seller of cattle may have believed them safe, sound, and free from tick fever, was unimportant, if in fact the buyer believed seller’s representations to that effect to be true and relied upon them in purchasing the cattle.</p> <p>3. Fraud ¡§=22(1)— Duty to investigate truth of representation as to diseased cattle.</p> <p>A buyer of cattle was under no duty to investigate the truth or falsity of seller’s representations that the cattle were safe, sound, and free from tick fever.</p> <p>4. Fraud <g=20 — Reliance on representations as to diseased cattle.</p> <p>If buyer of cattle represented to be free from tick fever believed the representations and relied on them and would not otherwise have purchased the cattle, he is entitled to recover damages, although he relied in part on what he saw when he inspected the cattle; but, if he relied in fact on what he saw, he cannot recover.</p>

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Suit by the Rice-Stix Dry Goods Company against John F. Gullidge and others. Judgment for plaintiff was reversed on the appeal of defendant First National Bank of McGregor (213 S. W. 344), and plaintiff brings error.</p>

<p>t. Homicide <®=309(6) — Charge on provoking difficulty held appropriate.</p> <p>In a prosecution for murder, resulting in conviction of manslaughter, only the mitigating and justifying acts being in controversy, not the killing, the words and conduct of defendant immediately preceding the assault made by deceased which resulted in his death held to render appropriate a charge upon the law of provoking the difficulty. »</p> <p>2. Homicide <®=309(l) — Converse of state’s charge on provoking difficulty should have been submittéd.</p> <p>In a prosecution for murder, resulting in conviction of manslaughter, where the court charged submitting the issue of provoking the difficulty from the standpoint of the state, in connection therewith the converse of the charge on defendant’s request should have been fully submitted.</p> <p>3. Criminal law <®=»854(6)— Permitting juror to go home for an hour because of sickness in his family erroneous.</p> <p>Under Code Cr. Proc. 1911, arts. 699, 745, in a prosecution for murder," resulting in conviction of manslaughter, where, after ten jurors were selected, impaneled, and sworn, one of them was permitted by the court, without consent of defendant or his counsel, and without being accompanied by an officer, to go to his home, about a mile distant, where a member of his family was sick, and there remain away from the courthouse, separated from the other members of the jury, for about an hour, such action was error, necessitating reversal as ⅛ violation of the mandatory provisions of the statute.</p>

<p>Appeal from District Court, Jones County; W. R. Chapman, Judge.</p> <p>Jessie Franklin was convicted of theft, and appeals.</p>

<p>Brady, J., dissenting.</p> <p>Appeal from District Court, Travis County; Geo. Callioun, Judge.</p> <p>Action by Nalle & Co. and others against the Southern Surety Company. Judgment for plaintiffs, and defendant appeals.</p>

Scurry, Judge. Suit by Frank T. Pickrell and another against the Imperial Petroleum Company and others to recover damages for deceit in the sale of an oil lease. Judgment for the plaintiffs for a part only of the amount claimed, and they, appeal.

R. Ewing, Judge. Action' by the White House Dumber Company against Walker D. Hines, Director General of Railroads, and the Panhandle & Santa Fé Railway Company, wherein John Barton Payne was substituted as defendant. Judgment for plaintiff, and defendant John Barton Payne appeals.

<p>Appeal from District Court, Atascosa County; Covey 0. Thomas, Judge.</p> <p>Action by Marcelina Soliz against A. A. Kurz and others. From judgment for plaintiff, defendants appeal.</p>

G. Matthews, Judge. Suit by W. I. Mitchell against Hubb-Diggs Company. Default judgment was rendered for plaintiff, and from an order overruling defendant’s motion for a new trial, defendant appeals.

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by B. G. Maxwell and wife against the City of Dallas. From judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Runnels County; J. O. Woodward, Judge.</p> <p>Action by Lucy Denton, for herself and as survivor in community of the estate of George V. Denton, against the Kansas City Life Insurance Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Brown County; J. O. Woodward, Judge.</p> <p>Action by Lorena Busbee and others against T. B. Busbee and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Brokers <&wkey;66 — Fact that assistance was required in selling land no bar to compensation under agreement to divide commissions.</p> <p>Where broker agreed to pay one assisting him half the commission if he should first call attention of buyer to land listed, the fact that a sale of a particular farm would not have been made to the purchaser furnished but for the efforts of the broker in selling vendor’s lien notes and a tract of land for such purchaser would not prevent a recovery by the assistant of the agreed compensation.</p> <p>2. Brokers <§=»66 — One who first pointed out a farm for sale after listed1 entitled to agreed part of commission, though before listed broker called purchaser’s attention thereto.</p> <p>Where before a farm was listed with a broker for sale, and when the purchaser was in no way interested therein, the broker called it to his attention, but not with a view to making a sale, and agreed to pay one assisting him a portion of commissions received on sales of land, and the farm was first pointed out to the purchaser by such assistant after it' was listed, the assistant was entitled to recover the agreed compensation.</p> <p>3. Brokers <&wkey;66 — Ordinary rules governing rights of real estate agents held not to apply to commissions as between brokers.</p> <p>Where broker agreed to pay to one assisting him one-half of commissions earned from sales of land brought about through the efforts of the assistant, the ordinary rules governing the rights of real estate agents to commissions for sale of lands had no application; the rights of the parties being governed by the contract as made between them.</p>

Bond, Judge. Suit by I. L. Wilmartb and others against J. C. Reagan and others. From judgment for defendants, plaintiffs appeal. This was a suit by appellants I. L. Wil-martb, Frank R. Lewis, W. A. Tucker, A. L. Trail, and T. J. Gilkey against the Kaufman county levee improvement district No. 9, and against J. C. Reagan, J. J. Roddy, and John Garner as the supervisors, and J. J. Davis, C. C. Ritter, and B. B. Hatley as the commissioners of appraisement of said district.

<p>Appeal from District Court, Halls County; Prentice Oltorf, Judge.</p> <p>Action by August A. Busch & Co. against Frank Peacock. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Milam County; John Watson, Judge.</p> <p>Suit by W. Wiedner against Louisa Wied-ner. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Harris County Court, at Law; Roy B\ Campbell, Judge.</p> <p>' Suit by E. M. Brett against the Western Union Telegraph Company. Judgment for plaintiff, and the defendant appeals.</p>

<p>1. Homestead <@=» 122 — Wife’s right to homestead ceases on acquiring a new one, and husband’s deed estops him.</p> <p>A husband, acting in good faith, may select the homestead of the family, and when he has acquired a new home, and his wife has removed with him to the newly acquired homestead, a prior deed made by him without her concurrence to the former homestead becomes as to the husband operative as an estoppel against his right to recover the property, and the wife’s right, being that of homestead only, ceases when a new homestead has been acquired and she removes .thereto.</p> <p>2. Homestead <©=»123 — Acceptance of money held ratification of transaction barring action for misrepresentations.</p> <p>Where a husband and wife contracted to sell their homestead and the wife subsequently refused to join, notwithstanding that with the proceeds of the sale they had acquired a new homestead, and had removed thereto, their act in accepting the purchase money for the land with full knowledge of the material facts held a ratification, precluding them from recovering for false representations inducing the execution of the earnest money receipt by the wife.</p> <p>3. Cancellation of instruments <§=37(4)— Pleading readiness to repay, if required, held not a tender.</p> <p>In a suit to cancel a deed on the ground that it was procured through misrepresentations, a statement in plaintiffs’ petition that, if they were required to pay money received as a condition precedent to recovery they were ready to do so, held not a tender.</p>

<p>Appeal from District Court. Dallas Comity; B. B. Muse, Judge.</p> <p>Action by-J. H. Barr against Dallas County. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Lampasas County; F. M. Spann, Judge.</p> <p>Contest of will of A. H. Moore, deceased, by Mr. Guy Ater and wife against Mrs. Carrie Moore. From an adverse judgment, contestants appeal.</p>

<p>Appeal from District Court, Harris County; W. E. Monteith, Judge.</p> <p>Action by Hazel McClain and another against the Foley Brothers Dry Goods Company. From judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Grayson County; Silas Hare, Judge.</p> <p>Suit by O. S. Gresham, trustee, against the Tecumseh Oil & Cotton Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Sales &wkey;>200(2) — Where wheat shipped consigned to shipper’s order, title passes on the payment of draft attached to bill of lading and delivery of the bill of lading, though weighing at destination necessary.</p> <p>Where wheat is purchased and shipped by rail consigned to shipper’s order, and drafts for the price are sent through banks, with bills of lading attached, and such drafts are paid by the purchaser, and bills of lading delivered to him, title passes to the purchaser, notwithstanding that the wheat must be measured or weighed at destination to definitely determine the exact sum to be paid for the entire mass.</p> <p>2. Carriers <&wkey;88 — Carrier relieved of liability for shipment on delivery to purchaser’s agent.</p> <p>Where a seller of wheat shipped it by rail to his order, with a draft and bill of lading attached, and the carrier delivered it to a wharf company, which was the agent of the purchaser authorized to receive it, the carrier thereafter owed no legal duty relative to the protection of the wheat.</p> <p>3. Carriers <&wkey;I34 — Wharves <&wkey;>20(7) — Evidence held to show proximate cause of loss of wheat due to act of God.</p> <p>In an action by a purchaser of two carloads of wheat brought against the seller, the carrier, and a wharf company, where it appeared that during a flood the wharf company hauled the cars into the yards of a railroad company, where they were destroyed by fire caused by the flood waters reaching an adjacent car of un-slacked lime, the undisputed evidence field tb show that the proximate cause of loss of the wheat was due to a storm properly classified as an act of God.</p> <p>4. Wharves &wkey;20(I) — Removal of wheat by wharf company to place where destroyed held remote and not proximate cause of loss.</p> <p>In an action by a purchaser of wheat against the seller, the carrier, and a wharf company for loss of the wheat by fire due to flood waters produced by a storm reaching a car of unslacked lime, where it appeared, that the wharf company, after the wheat had been delivered to it, was forced to haul the cars to another point and to leave them in the yards of a third party where the loss occurred, the removal by the wharf company, if negligence, was the remote, and not the proximate, cause of the loss.</p> <p>5. Wharves ©=»20(7) — Evidence sustaining finding that loss from storm could not have been prevented by defendant.</p> <p>In an action by a purchaser of two carloads of wheat against the seller, the carrier, and a wharf company to which it had been delivered, where it appeared that because of a storm flood waters gathered to a height forcing the wharf company to move the cars to a place where they were destroyed by fire, caused by water reaching unslacked lime, evidence field to support a finding that the damage by high water from the storm could not be prevented by the wharf company at a reasonable expense and without injury to others.</p> <p>6. Wharves ■ <&wkey;20(1) — Wharf company held not obligated to raise tracks above level of flood waters of previous storms to prevent injury to wheat delivered to it.</p> <p>In an action by a purchaser of wheat against the seller, the carrier, and a wharf company to which it had been delivered, for its loss by fire occurring through flood waters reaching a car of unslacked lime at a point to which the wharf company had been forced to move the cars in an effort to protect them, field that the wharf company could not be charged with anticipation of the severity of the storm, and was not obligated to go to great expense to raise its track beyond the level of flood waters of previous storms.</p> <p>7. Wharves &wkey;>20( I) — Removal of wheat by wharf company to escape floods held not actionable negligence.</p> <p>In an action by a purchaser of wheat against a wharf company to which it had been delivered for its loss by fire caused by flood waters reaching an adjacent car of unslacked lime in the yards of a third party, to which the wharf company had moved it to escape the floods, such removal held not under the evidence actionable negligence, it being made in good faith in the ■stress of grave and impending danger, and with the view of saving the property from injury.</p>

<p>1. Lost instruments <g=»8(l) — Possession not indispensable prerequisite to presumption of existence of deed.</p> <p>Possession is not an indispensable prerequisite to the presumption of the existence of a deed, but it is essential that the claim of title be made in some tangible form calculated to bring notice to those who are adversely affected thereby, so as to create a presumption of acquiescence in such claim by the adverse parties.</p> <p>2. .Lost instruments <§=>8(3)— Execution of quitclaim deed for consideration does not show acquiescence of heirs in presumed deed.</p> <p>Where plaintiffs claimed title to land under presumed existence of a deed, the giving of a quitclaim deed by heirs of alleged grantor would not tend to show any acquiescence on their part in any claim by plaintiffs if supported by a full-paid consideration.</p> <p>3. Evidence <§=»87 — Presumption of conveyance one of fact and not of law.</p> <p>The presumption in favor of the existence of a conveyance of land is one of fact and not of law.</p> <p>4. Trespass to try title <§te»35(l) — ■ Plaintiff confined to proof of title specially pleaded. •</p> <p>Except as to title by limitation where plaintiff in trespass to try title elects to plead his title specially, he is confined to the proof of the title so pleaded.</p> <p>5. Trespass to try title ¡§=>35(1) — 'Title by limitations not permissible under general allegations.</p> <p>A showing of title by limitations is not permissible under the general allegations of a petition of trespass to try title, but must be specially pleaded.</p> <p>8.Trespass to try title <§=»35( I) — Presumption of execution of deed asserted under genera! allegation.</p> <p>The presumption of the execution of a deed may be asserted under the general allegations of a trespass to try title petition.</p> <p>7. Adverse possession @=>7i (I)— Conveyance of interest held to support plea of five years' limitation as a deed and not quitclaim.</p> <p>A conveyance by grantors of all their right, title, and interest in certain described lands, followed by the habendum clause of a general warranty deed, is a deed to the land, and not a mere quitclaim oí the grantor’s interest, and will support a plea of five years’ limitation.</p> <p>8. Adverse possession <®=a80(2)— Deed must contain sufficient description to support plea of five years’ limitation.</p> <p>A deed to support a plea of five years’ limitation must contain such a sufficient description that it will appear from its terms or reference to other instruments of record in the chain of title that it conveys the very land in controversy, so that its registration will put the adverse party on notice that the land is thus being claimed, as an owner of land is not bound to run down references to facts outside the chain of title to ascertain the meaning of the deed.</p> <p>9. Adverse possession <S=»82 — Five-year statute begins to run from registration of deed.</p> <p>The five-year statute of limitations begins to run from the time of registration of the deed on which the plea is based.</p> <p>10. Adverse possession <S=>93 — Payment of taxes for five years held sufficient.</p> <p>Where deed was registered September 7, 1904, payment of taxes for the years 1904 to 1908, inclusive, was sufficient to sustain a plea of five-year limitations, it not being necessary to pay taxes for the year 1909.</p> <p>11. Adverse possession <&wkey;90 — Title may be acquired to undivided interest in land.</p> <p>Title may be acquired to an undivided interest in land under the five-year statute of limitations by payment of taxes.</p> <p>12. Adverse possession &wkey;>l 15(1) — Whether party claiming under five-year statute paid taxes properly held for jury.</p> <p>In trespass to try title, where a party claimed land under five-year statute, whether defendant had paid the taxes for five consecutive years as required by the statute held for the jury.</p> <p>13. Adverse possession <&wkey;>90 — Taxes must be paid under proper description.</p> <p>It was not sufficient, under the five-year statute of limitations, that taxes were paid, where payment was made on a wrong description, so that no credit of taxes was made on the assessment of taxes against the tract of land in question, since such payment would not afford owner of legal title any notice that some one else was paying taxes on his land.</p> <p>14. Adverse possession &wkey;>94 — Payment of taxes after delinquency insufficient.</p> <p>Payment of taxes after delinquency is insufficient under the five-year statute of limitations.</p>

McDonald, Judge. Suit by R. J. Blakeny against Ballew & Huston and others. Judgment for plaintiff, and defendants appeal. The appellee brought the suit to recover $600 deposited as earnest money with the First National Bank as stakeholder. The defendants each made answer. The case was submitted to the jury on special issues, and on the answers of the jury the court entered judgment for the $600 in favor of the plaintiff.

Suit by the City of San Antonio against Carolina C. Garza and husband. From a judgment of the Court of Civil Appeals affirming a judgment for plaintiff (214 S. W. 488), defendants appeal.

Action by J. H. Cawthorn against the City of Houston. From a judgment sustaining a general demurrer to plaintiff’s petition, the plaintiff appealed to the Court of Civil Appeals, which affirmed the judgment. (212 S. W. 796), and the plaintiff brings error. Judgments of the district court and Court of Civil

Suit by 6. B. Haupt and others against M. G. Michaelis. Judgment for plaintiffs was, on defendant’s appeal, reversed in part and affirmed in part (212 S. W. 274), and plaintiffs bring error.

Suit by R. A. Gilliam, guardian and executor, against Mittie Gibson Mahon and others to construe a will. A judgment of the district court was reversed by the Court of Civil Appeals (215 S. W. 124), and plaintiff brings error.

<p>Error to Court of Civil Appeals óf Sixth Supreme Judicial District.</p> <p>Action by S. A. Steed and wife against the Gulf, Colorado & Santa Fé Railway Company.</p>

Action by C. C. Poe against Continental Oil & Cotton Company and others. Erom a judgment of the Court of Civil Appeals (211 S. W. 488), affirming a judgment for defendants, plaintiff brings error.

Suit by A. Zundelowitz against Ed Wag-goner and another. From a judgment of the Court of Civil Appeals, reversing a judgment for defendants (211 S. W. 598), defendants bring error.

Action by Byron B. Byrne against Earl Morrison and others, in which W. H. Neely and wife and another filed a cross-action against defendant Morrison and one Hastings. Judgment for plaintiff on the main action. Judgment for Neely and wife on the cross-action, affirmed by Court of Civil Appeals (214 S. W. 586), and Morrison and another bring error.

Suit by Jubal Evans and wife against the Houston Oil Company of Texas and others. Judgment for defendants affirmed by the Court of Civil Appeals (211 S. W. 605), and plaintiffs bring error.

Action by Mrs. Annie Hughes and others against Mrs. Mattie Roberson and others. Judgment for defendants. From a judgment of the Court of Civil Appeals (214 S. W. 946), overruling all assignments of error brought by plaintiffs, but reversing the judgment for defendants on a ground not assigned, defendants appeal.

Action by S. M. Cameron and others against the Farmers’ & Merchants’ State Bank of Ballinger. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (203 S. W. 1167), and defendant brings error. Jno. I. Guión and M. C. Smith, both of Ballinger, for plaintiff in error. R. B. Truly, of Eastland, and Snodgrass, Dibrell & Snodgrass, of Coleman, for defendants in error.

Action by John B. Scripture against the Gulf, Colorado & Sante Eé Railway Company and the Pullman Company, with cross-action by the Railway Company against the Pullman Company. The Court of Civil Appeals affirmed judgment for plaintiff against the Railway Company, but reversed the judgment for the Pullman Company as between it and the Railway Company (210 S. W. 269), and the Pullman Company brings error.

<p>1. Master and servant <§s»204(I) — Assumption of risk defense under federal act.</p> <p>In action for an injury to an employee engaged in painting a bridge used in interstate commerce, tbe common-law doctrine of assumed risk, if supported by tbe facts, is a complete defense.</p> <p>2. Master and servant <&wkey;228(l) — Risk of master’s negligence not assumed.</p> <p>An employee does not assume negligence of his employer as a risk ordinarily incident to his service.</p> <p>3. Master and servant <&wkey;2l7(!3) — -Risk of unsafe place assumed by servant havir/g knowledge of danger.</p> <p>An employee placed by his employer in a position where he could not guard himself against danger by any reasonable amount of care on his part can assume that his employer had made such provision for his safety as was reasonably necessary to protect him from injury, and was not required to use even ordinary care to see whether this had been done, and he can therefore be held to have assumed the risk of the master’s failure to take such precaution only when he knew it had not been taken or when in the ordinary discharge of his duty he must have acquired such knowledge.</p> <p>4. Master and servant &wkey;>217(16) — Risk of failure to give warning of vehicles not assumed by bridge painter on scaffold known to be too low.</p> <p>Though a railroad bridge painter, who was working on a scaffolding on the under side of a bridge over a highway, and could not see approaching vehicles, knew that the scaffolding was too low to permit high-topped wagons to pass under it, so that he assumed the risk of injury from that defect, such knowledge does not show assumption of risk by him of his employer’s failure to have watch kept to give warning of the approach of vehicles if such watch was reasonably necessary for the employee’s protection.</p> <p>5. Master and servant <&wkey;>288(5) — Assumption of risk question for jury.</p> <p>If the evidence shows with such certainty that reasonable minds cannot differ as to its effect that the employee knew or must necessarily have known in the ordinary discharge of his duties that his master was not taking precaution for his safety, the charge denying recovery on the ground of assumption of risk would be proper.</p> <p>6. Master and servant &wkey;o280 — Evidence held to show bridge painter on scaffold did not assume risk.</p> <p>In an action for an injury to a railroad bridge painter when the scaffolding on which he was working and which was hung under a bridge over a highway was struck by a wagon, evidence held to sustain the jury’s finding that he did not know of the master’s failure to have watch kept for approaching vehicles which would strike the scaffold, though it showed that shortly before the accident another wagon had struck the scaffold, but stopped before any injury was done when some one called a warning.</p> <p>7. Appeal and error <&wkey;994(2)— Credibility of plaintiff as witness for the jury.</p> <p>The credibility of plaintiff as a witness and the weight to be given his testimony in view of his interest is -for the jury.</p>

Action by Julia C. Humphrey and husband against the National Fire Insurance-Company of Hartford, Conn. Judgment for plaintiffs was reversed and rendered by the Court of Civil Appeals (211 S. W. 811), and plaintiffs bring error.

Proceedings under the Workmen’s Compensation Act by Mrs. Regina Boudreaux to obtain compensation for the death of her husband, opposed by the Gulf Production Company, subscriber, and the Texas Employers’ Insurance Association. Prom a judgment of the Court of Civil Appeals (213 S. W. 674) affirming an award of compensation, the Insurance Association brings error.

<p>Appeal from District Court, Liberty County; D. F. Singleton, Judge.</p> <p>Suit by Rhola Smith Canter against Day Canter for divorce. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Midland County; W. P. Leslie, Judge.</p> <p>Suit by J. M. Jemison and another against H. P. Estes. Judgment for defendant, and plaintiffs bring error.</p>

<p>Appeal and error <&wkey;1195(1) — After affirmance by Supreme Court, opinion of Court of Civil Appeals stands as law of case.</p> <p>Where the Court of Civil Appeals certified a question to the Supreme Court, which answered it in the affirmative, affirming the opinion of the Court of Civil Appeals, such opinion of the Court of Civil Appeals, originally Handed down, reversing and rendering the judgment, stands as the law of the case.</p>

<p>1. Appeal and error <§=989 — On question of sufficiency of evidence, only evidence supporting verdict considered.</p> <p>In determining whether there is sufficient evidence to sustain a verdict, an appellate court must reject all evidence favorable to the losing party and consider only that sustaining the verdict.</p> <p>2. Monopolies <§=21 — Province of court stated.</p> <p>In determining whether a contract for sales of goods for resale by the buyer violates the anti-trust statute (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7796-7818), it is the province of the court to construe the original contract and also to construe facts found by the jury as to communications subsequent to the contract in connection with the original contract.</p> <p>3. Evidence <§=437 — Monopolies <§=I7(I)— Communications subsequent to contract held admissible and to render contract violative of statute.</p> <p>Though a contract for sales of goods to one purchasing for resale provided that it constituted the sole agreement, and that booklets, bulletins, and literature sent to the buyer should he considered as educational and advisory, and not as altering the contract, evidence of subsequent communications held admissible to show that the seller restricted the buyer’s territory, fixed the resale prices, and required the buyer to give his entire time to the business, and these facts, when established, render the contract violative of the Anti-Trust Law.</p>

<p>Appeal from District Court, Dallas County ; E. B. Muse, Judge.</p> <p>Suit by Charles Jordan against the Home Dife & Accident Company. Judgment for plaintiff, and defendant appeals.</p>

■ Appeal from District Court, McLennan County; H. M. Richey, Judge. Suit by W. T. Childs against the First National Bank of Jacksonville, Tex., and Lee (3. Carter. A plea of privilege to be sued in another county was overruled as to the defendant Bank, and sustained as to the defendant Carter, as to whom the cause was dismissed, and the Bank appeals.

<p>1. Banks and banking <&wkey;228— Evidence held to make issue of fact as to whether president was acting for bank.</p> <p>In an action by a bank to recover an overdraft, evidence held to make an issue of fact as to whether the president of the bank in purchasing defendant’s cotton and promising to put the proceeds in the bank to his credit was acting as president of the bank or individually.</p> <p>2. Appeal and error <&wkey;10ll(l) — Trial judge’s finding on issue of fact not disturbed.</p> <p>Where the trial court was compelled to determine an issue of fact upon diametrically opposed evidence and pass upon the veracity of the witnesses, it is the duty of the Court of Civil Appeals to uphold his finding.</p> <p>3. Appeal and error i&wkey;747(2) — Inconsistency of conclusions not considered when only one party has assigned error.</p> <p>Whether the court’s conclusions of law which were partly favorable to defendant and partly unfavorable were inconsistent as a whole need not be determined, where there is no cross-assignment of error by plaintiff.</p> <p>4. Banks and banking &wkey;sl06— Bank not liable for president’s failure to deposit money as agreed individually.</p> <p>Where the president of a bank acted as an individual and not as an official of the bank in purchasing defendant’s cotton and promising to deposit the proceeds in the bank to his credit, the bank was not responsible to the defendant for his failure to deposit the proceeds to defendant’s credit, though he deposited them to his own credit; it not appearing that any of the other officers knew anything about the nature of the transaction until long after-wards.</p>

<p>Error from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by W. H. Patterson against the Hartford Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

O. Woodward, Judge. Action by the United States Fidelity & Guaranty Company of Baltimore, Md., against Mrs. J. S. Lowry, to set aside an award of the Industrial Accident Board in a proceeding under the Workmen’s Compensation Law. Judgment for defendant,’ and plaintiff appeals.

<p>Appeal from! District Court, Hill County; Horton B. Porter, Judge.</p> <p>.Action by P. J. Jones against the Texas Electric Railway. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Smith County Court; D. R. Pendleton, Judge.</p> <p>Suit by the State National Bank of Tex-arkana against U. A. Potter. Prom a judgment for defendant, plaintiff appeals.</p>

Denton, Judge. Suit by J. W. Allen & Bro. against Geo. T. Cobb, C. M. Godwin, B. J. Johnson, and H. B. Johnson on a contractor’s bond. Judgment for plaintiffs, and the sureties on the bond appeal.

M. Richey, Judge. Suit by W. J. Wilson against Virgie Bell Wilson, in which defendant filed a cross-action. From judgment for defendant on her cross-action giving her insufficient relief, she appeals.

<p>Appeal from District Court, Harris County; W. E. Monteith, Judge.</p> <p>Action by J. Lobit and others against I. S. Dolen and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Bexar County'» W. S. Anderson, Judge.</p> <p>Suit by Edna Erwin against W. S. Erwin and others. From a decree for plaintiff, defendants appeal.</p>

Error from District Court, Nueces County; W. B. Hopkins, Judge. Trespass to try title by W. C. Witherspoon against W. E. Pope and others. Judgment for plaintiff, and the named defendant brings error.

<p>Appeal from District Court, Williamson County; Ireland Graves, Judge.</p> <p>Action by George W. Smith and others against Frank K. Womack and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Robertson County; John Watson, Judge.</p> <p>Action by A. J. Hodges against James A. Baker, receiver of the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>i. Escrows <®mol — Defined and held to have no application to money placed with another to be applied as directed by owner.</p> <p>An escrow is a written instrument importing a legal obligation which is deposited by grantor, promisor, obligor, or his agent with a stranger or third party to be kept by the depositary until the performance of a condition or happening of a certain event, and then to be delivered over to the grantee, promisee, or ob-ligee, and bas no application to money placed in tiie hands of another to be applied as directed by the owner.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Escrow.]</p> <p>2. Damages <®=c65 — Action construed as one for misappropriation of funds in which plaintiff was estopped to claim more than damage actually suffered.</p> <p>In an action by the owner of money placed in the hands of the defendant receiver with instructions as to its application, held, that the action was for a misappropriation of funds, and that the plaintiff could not recover for the reason that the money had been paid as directed by him in releasing liens upon his land, so that he was estopped by equity and good conscience from recovering more than the damages actually suffered, namely, the unexpended balance left after discharging the liens.</p>

<p>1. Mortgages <§=>32(l) — Deed, absolute on Its face may be shown to be a mortgage.</p> <p>A deed absolute on its face may be shown by the intention of the parties to be security for a debt and in legal contemplation a mortgage.</p> <p>2. Mortgages <S=>36 — Party asserting that deed absolute on its face is a mortgage has burden of proof.</p> <p>The party asserting that a deed absolute on its face was in fact a mortgage has the burden of so showing by preponderance of the evidence.</p> <p>3. Mortgages <®=32(2) — For deed absolute on its face to be held a mortgage, it must have been so intended by the parties.</p> <p>For a deed absolute on its face to be a mortgage, it must have been so understood and intended by both of the parties at the tim,e of its execution.</p> <p>4. Trial <S=I43 — In case of disputed facts issue should be submitted to jury.</p> <p>In case of disputed facts, the issue should be submitted to the jury.</p> <p>5. Mortgages <§=>39 — Evidence insufficient to carry to jury whether deed absolute on its face was a mortgage.</p> <p>Where defendant admitted the execution of a deed, not pleading non est factum or that it was secured by fraud, but asserting that it was in fact a mortgage, evidence held insufficient to carry that issue to the jury; defendant testifying that she never signed the deed.</p> <p>6. Witnesses <§=>345(2) — Witness cannot be impeached by inquiry as to particular crimes.</p> <p>A witness cannot be impeached by allowing the opposite party to inquire whether he had not been charged with various criminal offenses, for that is not a proper mode of an impeachment even on cross-examination.</p>

D. Love, Special Judge. Trespass to try title by H. Masterson and others against J. S. Taylor and others. From an order sustaining a general demurrer and special exceptions to defendants’ pleas in re-convention, defendants appeal.

Error from Dallas County Court; T. A. Work, Judge. Suit by the Dallas County State Bank against B. E. Crismon and others. Judgment granting plaintiff insufficient relief, and it brings error.

<p>Appeal from District Court, Hunt County; Geo. B. Hall, Judge.</p> <p>Action by J. O. Johnson and others against the Board of Permanent Road Commissioners of Hunt County and others. Judgment for plaintiffs, and defendants appeal.</p>

Error from Tarrant County Court; W. P. Walker, Judge. Action by H. L. Mahaffey against the Indemnity Company of America and another. Judgment by default against the Indemnity Company after plaintiff had dismissed as to other party, and defendant Indemnity 'Company brings error.

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Suit by S. A. Charlton against the St. Paul Eire & Marine Insurance Company. Judgment for the plaintiff, and the defendant appeals.</p>

<p>1. Appeal and error <§=>396 — Exception in notice of appeal not necessary for appeal from temporary injunction.</p> <p>As under Vernon’s Sayles’ Ann. Civ. St. 1914, art 4644, a temporary injunction order may be made in chambers, out of term and without notice or hearing, a notice of appeal is not necessary to give a right of appeal from such order; the general law (article 2084) requiring exceptions to the ruling of the trial court and notice of appeal therefrom having no application.</p> <p>2. Appeal and error <§=>396 — Exception and notice of appeal necessary to perfect appeal from final judgment perpetuating injunction.</p> <p>To appeal from a final judgment perpetuating an injunction made in open court upon a hearing in term time in a trial upon the merits of the case, exception and notice of appeal required by the general law (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2084) is necessary, and where no exception was taken and notice given the appeal must be dismissed.</p>

Certified Questions from Court of Civil Appeals of First Supreme Judicial District. Proceeding between J. W. Wilson and E. A. Giraud. Judgment for the latter was reversed by the Court of Civil Appeals, a rehearing granted, and questions certified.

Action by Annie E. Chittim against G. A. Parr and others. To review a judgment for defendants, plaintiff brought error to the Court of Civil Appeals, which reversed and rendered judgment dismissing the cause for want of prosecution (216 S. W. 63S), and defendants bring error.

Action by C. F. Fath against the Paris Transit Company. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed (216 S. W. 482), and defendant brings error.

Action by John T. Briscoe against the administrator of the estate of J. M. Bright, deceased, and cross-action by the defendant. Judgment of the Court of Civil Appeals (202 S. W. 183) reversing the trial court’s judgment for the plaintiff, and plaintiff brings error.

Action by Emmett L. Chandler against the American Express Company and another. On appeal by defendants, a judgment for plaintiff was affirmed by the Court of Civil Appeals (215 S. W. 3G4), and defendants bring error. Judgments of Court of Civil

Suit by the State of Texas against the Prairie Oil & Gas Company and others. An order granting temporary injunction was modified and affirmed by the Court of Civil

<p>1. Deeds &wkey;>93 — Cardinal ruling of construction Is to ascertain parties’ intent.</p> <p>The cardinal rule for construction of a written instrument as a deed is to arrive at the intention of the parties.</p> <p>2. Deeds <&wkey;97 — All parts should be given effect, if possible.</p> <p>All parts of deeds should be given effect, if possible.</p> <p>3. Deeds <&wkey;l 11 — General description yields to particular description.</p> <p>Where a particular description in a deed is followed by a general description, the latter yields, but, where it is possible, the real intention must be gathered from whole description, including the general as well as special.</p> <p>4. Deeds c&wkey;|l2(l) — All Instruments In a chain of title when referred to will be read into deeds.</p> <p>All instruments in a chain of title when referred to in a deed will be read into it.</p> <p>5. Evidence <&wkey;46l (3) — Where deed Is clear, parol evidence is inadmissible to show intention.</p> <p>Where the description in a deed is plain, clear, and unambiguous, parol evidence is inadmissible to show that it was intended by the parties to convey land not described.</p> <p>6. Deeds &wkey;>ll2(l) — Conveyance of league of land held not to embrace labor.</p> <p>Where the grantor owned a league of land lying in Jasper county and labor of land lying in Liberty county, though it was supposed that they both lay in the latter county, a deed reciting a sale of a league of land lying in county of Liberty which referred to previous conveyances wherein the league and labor were referred to as the O. league and O. survey did not, though the grantee later attempted to convey both parcels of land, include the labor, on the theory that such conveyance by the grantee, coupled with the fact that that grantor did not thereafter assert any right to the labor, showed an intention to pass both parcels. ■</p>

<p>Criminal law <S=wl 094 — Judgment affirmed, in absence of bill of exceptions or statement of fact.</p> <p>A conviction will be affirmed, where there appears in the record neither bill of exceptions nor statement of facts, and the indictment and the charge are in conformity with the law.</p>

<p>Appeal from Criminal District Court, Dallas County; Chas. A. Pippen, Judge.</p> <p>Lucius Frazier was convicted of assault to rape, and appeals.</p>

<p>Appeal from District Court, Kaufman County; Joel R. Bond, Judge.</p> <p>Henry Davis was convicted of aggravated assault, and he appeals.</p>

<p>Appeal from Garza County Court; H. G. Smith, Judge.</p> <p>S. P. Allred and J. N. Atkinson were convicted of the theft of cotton seed, and they appeal.</p>

<p>Appeal from District Court, Harris County; Ewing Boyd, Judge.</p> <p>Proceeding by Effie V. Leonard under the Workmen’s Compensation Act against the Western Indemnity Company to recover for the death of her husband, an employé of the Universal Shipbuilding Company. From a judgment of the district court, sustaining an award of the Industrial Accident Board, the Indemnity Company- appeals.</p>

L. Rust, Judge. Action by Frank Crawford against J. T. Wilcox. Judgment for plaintiff and defendant appeals from the judgment, and from an order denying a new trial.

<p>Appeal from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Suit by the City of San Angelo against Concho Camp, No. 66, Woodmen of the World. From judgment for plaintiff, defendant 'appeals.</p>

<p>Appeal from Harris County Oourt; George D. Sears, Judge.</p> <p>Suit by C. M. Bullock against the Pullman Company. Verdict and judgment for plaintiff, and the defendant appeals.</p>

<p>1. Brokers <S=>82(4) — A petition being for com- • missions on express contract, no recovery on any other basis.</p> <p>The petition being on an express contract to pay a certain commission for effecting sale on stipulated terms, recovery cannot be had on any basis other than such contract.</p> <p>2. Appeal and error <3=»I0I1(I) — Finding of facts on conflicting evidence conclusive.</p> <p>The evidence having been conflicting, the judgment is conclusive as to the facts of making and breach of contract.</p>

<p>Appeal from District Court, Milam County; W. G. Gillis, Judge.</p> <p>Action by R. C. Wallis against John Barton Payne, Agent, and another. Prom a judgment for plaintiff, defendant Payne appeals.</p>

<p>1. Husband and wife <§⅛>146— Husband contracting for his wife with her tenant for repairs not liable to tenant for negligent performance.</p> <p>A husband merely contracting as agent of his wife, the landlord, with her tenant for repair of her building, neither concealing his agency nor agreeing to be bound individually, is not liable to the tenant for injury to his goods through negligent performance of the work.</p> <p>2. Husband and wife ⅞=^213 — Wife liable for negligent performance of her contract with her tenant for repairs.</p> <p>Under Vernon’s ÍSayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624, giving to a wife the sole management and control of her separate property, including rents therefrom, except that the husband must join in disposition or incumbrance of real estate, she is liable for negligent performance through her agents of her contract with her tenant for repairs, whereby his goods are injured. - '</p> <p>3. Husband and wife <®=»2I3 — Husband must be joined in action against wife for her negligent performance of contract.</p> <p>The husband must be joined in action against a married woman for negligent performance of her contract with the tenant of her separate property for repairs thereof, whereby the tenant’s goods were injured.</p>

<p>Appeal from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Motion for leave to file motion for rehearing.</p>