Volume 232 — South Western Reporter

McClendon, J.,„ dissenting. Error to Court of Civil Appeals of Fourth Supreme Judicial District. Suit by M. W. Terrell against the Summit Place Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (203 S. W. 1110), but on motion of defendant the judgment was set aside, and judgment rendered for defendant. Plaintiff’s motion for a rehearing ,was overruled (207 S. W. 145), and he brings error.

Action by Houston Oil Company of Texas against Polly Choate and others, in which Mrs. P. D. McLoughlin and others filed a petition of intervention and brought a cross-action of trespass to try title. Erom a judgment of the Court of Civil Appeals (215 S. W. 118), affirming a judgment for the inter-veners, the plaintiff brings error.

Suit by Mike E. Smith and others against Atchison, Topeka & Santa Fé Railway Company, L. M. Dunaway, and others to set aside a settlement between the named defendants as a fraud upon the rights of plaintiffs as attorneys for defendant Dunaway, in which defendant Dunaway filed an answer and cross-bill alleging the settlement was invalid, and asking damages for personal injuries.

<p>1. Appeal and error <&wkey;362(l) — Supreme Couri cannot consider fundamental error not presented in application for writ of error.</p> <p>On writ of error, the jurisdiction of the Supreme Court is limited by Rev. St. 1911, art. 1546, to the questions of law presented in the application, and it cannot review even fundamental errors which are not.so presented.</p> <p>2. Limitation of actions <&wkey;55(6) — Action for permanent injuries to land1 by operation of septic tank did not accrue until consequential damages occurred.</p> <p>Where the findings approved by the Court of Civil Appeals showed that the injury to plaintiff’s land from a septic tank operated by a town resulted, not from the construction of the tank, but from the mode of operation, the statute of limitations did not begin to run against plaintiff’s right to recover the depreciation in the value of his land resuting from the nuisance at the time of the construction of the tank, but only when the consequential damages resulting from its operation occurred.</p> <p>3. Nuisance <&wkey;50 (2) — Depreciation in value of land recoverable for permanent nuisances.</p> <p>Where the injury to the land is only temporary, and the nuisance is capable of being abated, plaintiff can recover only depreciation in rental value or use of land which had occurred before the trial, but, if the nuisance is permanent and not subject to be abated, or if it is treated as permanent by the parties, the proper measure of damages is the depreciation in value of property.</p> <p>4. Appeal and error <&wkey;93l(4) — Permanent nuisance presumed in support of judgment where no requests for submission of issue of permanence were made.</p> <p>Where defendant in action for damages caused by nuisance did not submit any charge embodying a request for finding as to whether the nuisance was permanent or for finding of damages if the nuisance was temporary, and the question whether the nuisance was permanent or temporary was a question of fact for the jury, it njust be presumed in support of judgment allowing damages for permanent nuisance ' that the trial court found that the nuisance was permanent, in view of Rev. St. 1911, art. 1985.</p>

Supreme Judicial District. Suit by W. H. Coleman and others against Porter Hallum and others for an injunction restraining defendants from permitting their hogs to run at large. A judgment granting the injunction was reversed and judgment rendered for defendants by the Court of Civil Appeals (214 S. W. 989) and plaintiffs bring error. A. B. Watkins, of Athens, for plaintiffs in error. J. J. Faulk, of Athens, for defendants in error.

<p>Disorderly house <®=>9 — Defendant who was concerned in keeping, or who abetted persons who kept, disorderly house, guilty; “appointment.”</p> <p>Under Pen. Code, art. 361, as amended by Laws 1907, c. 132, if defendant directly or for another kept or was concerned in keeping, or aided or assisted or abetted the persons who kept a disorderly house, by making appointments with men for the purpose of assignations with women in such house, he was guilty as charged of keeping or of unlawfully aiding, assisting, and abetting in keeping a disorderly house; defendant having made an “appointment” for the men and women within the definition of the term as arranging a meeting.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Appoint —Appointment.]</p>

<p>Error from District Court, Coleman County; J. 0. Woodward, Judge.</p> <p>Action by the Adams-Childers Company against the Austin Eire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and error <s=»!069(2) — Trial ■ 307(1) — Prejudicial for jurors to obtain dictionary.</p> <p>It was error and prejudicial for the jurors, who had retired, to obtain a dictionary to be used by them, since no maker of dictionaries should ever be allowed to define legal terms to a jury, unless such definitions go through the medium of the trial judge, the only one authorized by law to give definitions and explanations to a jury.</p> <p>2. Contracts ®=322(2) — Court erred in overruling objection to evidence collateral to issues.</p> <p>In an action on a note given to secure the establishment of a shipyard in a city for the construction of four wooden ocean-going ships, on the issue of what is an ocean-going ship, the court erred in not sustaining an objection to question as to how many boats Columbus had when he discovered America.</p> <p>3. Trial ⅞=»29(3) — Trial court should be careful of observations as to manner counsel asked questions.</p> <p>The rules of the district court govern the conduct of counsel in the trial of causes, and they should be required to observe them though it be necessary to impose a penalty, but the trial court should be careful in making observations that may tend to influence the jury to the one side or the other.</p>

<p>Brokers <®=»49(2) — Provision for liquidated damages held not to prevent enforcement of contract, so that brokers were entitled to commissions, though not performed.</p> <p>A provision in a contract for the sale of land, requiring the purchaser to deposit a sum to be paid to the vendor as liquidated damages in the event of failure to complete the purchase, does not make the contract a mere option, which the purchaser can refuse to perform on forfeiture of the deposit, but is one which can be enforced against him, so that the brokers who procured the purchaser are entitled to their commissions, though the contract was never performed.</p>

B. Terrell, Judge. Suit by Ed. C. Lasater against George Spark and another. From an order denying defendants’ motion for temporary injunction, defendants appeal.

<p>Appeal and error &wkey;>479(I) — Injunction will not be issued to suspend execution pending appeal by party unable to give supersedeas bond.</p> <p>Though the purchaser, against whom judgment had been rendered on vendor’s lien notes, and who had appealed therefrom, with cost bond only, was financially unable to give a supersedeas bond, that fact does not authorize the Court of Civil Appeals to grant an injunction against the execution of the judgment pending the appeal. .</p>

<p>1. Carriers t&wkey;l37 — Instruction as to measure of damage for injuries to household goods held erroneous.</p> <p>In an action against a transfer company for damages ^to household goods, an instruction that the measure of damages was the reasonable market value of the goods damaged and the usual value of the labor and material necessary to repair the same together with the difference between the reasonable market value of the goods just before the damage and just after the repair was made held erroneous as in effect authorizing a recovery for the value of the goods plus the difference between the market value before the damage and after the repair.</p> <p>2. Carriers &wkey;U35 — Measure of damage for injury to household goods stated.</p> <p>When household goods in use are injured while being transported by a carriel*, the measure of damage is the difference in the actual value just prior to and just subsequent to the injury.</p> <p>3.Appeal and error <&wkey; 1170(9) — Erroneous instruction on damages not prejudicial’ in view of recovery.</p> <p>Where in an action against a transfer company for injuries to household goods the evidence authorized a recovery, an erroneous instruction as to the measure of damages is not ground for reversal in view of rule 62a (149 S. W. x).</p>

Action by Mary McClure and another against W. G. McAdoo, Director General of Railroads, Edward S. Boyles, receiver of the Houston Transfer Company, and others. The action was dismissed as to defendants other than Walker D. Hines, Director General, and Edward S. Boyles, receiver. Judgment was rendered for plaintiffs against such defendants, and they appeal.

<p>Appeal from District Court, Harris Coun-ty; W. E. Monteith, Judge.</p> <p>Action by Frances Hogan against the Interstate Casualty Company of Birmingham and W. E. Brown. Judgment for plaintiff and defendant Company appeals.</p>

<p>1. Carriers <§==3383 — Conductor held entitled to eject passenger who tendered only Texas mileage on return trip from Oklahoma after crossing line.</p> <p>Where a passenger left a town in Texas to go to a town in Oklahoma' and on his return paid cash across the state line to a point where he intended to stop, but did not do so, the conductor has a right to eject him when on continuing his return trip he refused to pay other fare than mileage from a Texas mileage book, not good for “an interstate journey or any portion thereof,” and tender of which the conductor refused.</p> <p>2. Estoppel <§=»63 — Selling ticket to interstate passenger for scrip from mileage book not good on interstate journey held not to es- . top carrier from claiming that passenger was interstate passenger.</p> <p>In an action against a carrier for ejection from a passenger train while attempting to ride on an interstate journey on a mileage book not good for such a journey, that after having been ejected defendant’s agent sold plaintiff a ticket for scrip from such book held not to estop defendant from contending that plaintiff was an interstate passenger.</p>

<p>Corporations @=»99(2) — Notes, secured by trust deed on real estate held “property” for which stock may be issued.</p> <p>Notes for stock amply secured by deed of trust on real estate are “property” actually received, for -which by Const, art. 12, § 6, stock may be issued.</p> <p>[Ed. Note. — Eor other definitions, see "Words and Phrases, Fiist and Second Series, Property.]</p>

<p>1. Limitation of actions <@=»29(2)— Chili parlor proprietor not a “merchant” within statute of limitations.</p> <p>Proprietor of chili parlor who also sold soda water and near beer in connection with his chili business held not a “merchant” within Rev. St. 1911, art. 5687, § 5, and article 5688, § 3, fixing period of limitations for actions on mutual and current accounts between “merchant and merchant.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Merchant.]</p> <p>2. Limitation of actions <®=>29(2) — Watch, watch fob, and pistol turned over to creditor by chili parlor proprietor not “merchandise” within statute of limitations.</p> <p>A watch, watch fob, and pistol turned over to his creditor by a proprietor of a chili parlor held not “merchandise” within Rev. St. 1911, art. 5687, § 5, and article 5688, § 3, fixing the period of limitations as to an action on mutual and current accounts concerning the trade of “merchandise” between merchant and merchant, since chili parlor proprietor was not dealing in such articles, but merely gave them as his personal possessions to his creditor toward payment of his account.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Merchandise.]</p> <p>3. Limitation of actions <@==>29(2) — chili parlor proprietor’s delivery of bottles and cases to creditor as payments did not make his account a “mutual and current account concerning the trade of merchandise” within statute of limitations.</p> <p>That chili parlor proprietor was given credit for near beer bottles and cases delivered by him to his creditor on two separate occasions did not make the creditor’s action against him one on a “mutual and current account concerning the trade of merchandise” within Rev. St. 1911, art. 5687, § 5, and article 5688, § 3, fixing the period of limitations for an action on such an account, there being in such case but one account, and the delivery of. the bottles and cases being merely payments thereon.</p> <p>4. Appeal and error @=>1175(3) — Judgment for defendant on reversal where action barred by limitations.</p> <p>Where the case had been fully developed showing plaintiff’s action to be barred by limitations, the Court of Civil Appeals in reversing judgment for plaintiff will not remand the cause, but will render judgment for defendant.</p>

<p>Appeal from District Court, Reeves County; Chas. Gibbs, Judge.</p> <p>Suit by S. M. Head and wife against J. A. Moore and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Railroads <@=>51/2, New, vol. 6A Key-No. Series — Director General’s order making appeal bond unnecessary held unauthorized.</p> <p>The Director General of Railroads being sued for death of cattle on track could not appeal to the county court from judgment for plaintiff in a justice court without executing an appeal bond, notwithstanding Director General’s General Orders Nos. 50 and 50a, providing that no appeal bond shall be required in such proceedings; the Director General having no authority under Act March 21, 1918 (U. S. Comp. St. 1918, U. S. Comp. St. 1919, §§ 3115%a-3115%p), to make such a regulation.</p> <p>2. Appeal and error <@=>374(4) —Federal stat- - ute exempting government officials from giving appeal bond applicable only to proceedings in federal courts.</p> <p>U. S. Comp. St. § 1661, exempting the United States government and the heads of its different departments from giving an appeal bond held inapplicable to Director General of Railroads’ appeal from the justice court to the county court, having reference only to proceedings in the federal courts.</p>

<p>1. Brokers <s=>48 — Broker who procures buyer entitled to commission.</p> <p>It is the general rule that a real estate broker having a contract authorizing him to effect a sale is entitled to the commission agreed on where he procures a buyer who consummates a purchase of the property on terms satisfactory to the owner.</p> <p>2. Brokers <§=53 — Where sale is consummated, broker is deemed the procuring cause.</p> <p>Ordinarily, when it is shown that a broker is instrumental in bringing the buyer and seller together, and the sale is consummated, he is deemed the procuring cause.</p> <p>3. Brokers <®=54 — Where purchaser is acceptable, it is not necessary to show that he was ready, able, and willing to buy.</p> <p>Where the broker produces a purchaser acceptable to the owner, it is not necessary to prove that the purchaser was ready, able, and willing to buy.</p> <p>4. Brokers <§=>49 (2) — Where purchaser buys, it is immaterial whether contract was binding or optional.</p> <p>Where a purchaser buys, it is immaterial on the broker’s right to commissions whether the contract was a binding one or whether it was optional.</p> <p>5. Brokers <§=>86 (4) — Evidence held to warrant finding that broker produced purchaser.</p> <p>Evidence held to warrant a finding that the broker produced a purchaser ready, able, and willing to buy, so as to be entitled to his commission.</p> <p>6. Associations <§=>18 — Association estopped from denying authority of manager. .</p> <p>Where three trustees of an association sold property, accepting the services of plaintiff, the association is estopped to deny the authority of the managing trustee, who contracted with plaintiff for rendition of services in connection with the sale.</p> <p>7. Associations ®=»20(5) — Averment that association made contract held warranted.</p> <p>Where an association adopted and ratified the act of plaintiff broker in effecting a sale of its property, it was permissible to plead that the contract of sale was made by the association in analogy to pleading that a contract executed: by promoters and ratified by a corporation was a corporate contract.</p> <p>8. Trial <®=»35l (2) — Special issue written on same paper with others covered need not be given.</p> <p>An issue not pleaded as an affirmative defense, though raised, need not be submitted where, when requested, it was written on the same piece of paper with other issues which were substantially covered by the charge.</p> <p>9. Brokers <®=>87 — Broker may recover entire commission even though another was to share.'</p> <p>Though plaintiff broker agreed to pay another a proportion of his commission for his services, plaintiff may, there being no privity of contract between the third person and the defendant landowner, recover the entire commission, the two not being partners, and the third person not being a necessary party.</p>

<p>1. Criminal law <©=>1091 (8)— Bill of exceptions to counsel’s argument should specify the objection.</p> <p>A bill of exceptions must make reasonably apparent the error complained of, and if the objection be to counsel’s argument, the bill should affirmatively show that it is not in answer to something said by counsel for the accused, or was not based on some evidence, and that it was the statement of some matter hurtful to the accused, and not properly before the jury, or for some reason inflammatory or abusive and calculated to injure accused.</p> <p>2. Criminal law «§=> 1092(5) — Bill of exceptions must be tiled during trial term.</p> <p>A bill of exceptions on the ground that one juror made reference to defendant’s failure to testify must be filed during the trial term to be considered on review.</p> <p>3. Criminal law <©=>1091 (10)— Statement of grounds of objection is not tantamount to a showing that such grounds are in fact proved.’</p> <p>The statement of grounds of objection by appellant is not tantamount to a showing that such grounds are in fact proved, and the facts must appear in the bill of exceptions, which show the error complained of, it not being enough for the defendant to say that he objects because a statement was made out of his I l presence, at a time when the party making the same was across the street, and that appellant did not hear it; this being merely a statement of his objections.</p> <p>4. Homicide <§=>190(9) — 'Testimony that defendant was a man of ordinary hearing and could have heard threats of deceased held properly refused.</p> <p>In a prosecution for murder, it was not error to refuse to allow witness to testify that defendant was a man of ordinary hearing, where deceased’s threats, directed toward defendant, were proven to have been made within five feet of defendant, some half hour before shooting, and in the absence of contrary proof it is a legitimate assumption that threats were in defendant’s hearing.</p> <p>5. Criminal law <©=>1170½(2) — Witnesses <©=> 345(1) — State’s asking defendant’s witness,who admitted his indictment and acquittal of murder, what his defense was, held improper, but without injury to defendant.</p> <p>In a prosecution for murder, where defendant’s witness admitted he had been indicted for and acquitted of murder, and the state’s counsel asked the ground of his defense, to which he replied “Self-defense,” held not a material or pertinent question, but without injury to defendant; the witness’ credibility only being involved.</p> <p>6. Criminal law <©=>1091 (I I)— Absence of bill of exceptions showing evidence held not justified.</p> <p>In a prosecution for murder, where the evidence covers 37 pages of typewritten matter, in the absence of a contrary showing, it would appear that the evidence could have been prepared in a few hours and the absence of bill of exceptions showing the evidence is not thereby justified.</p>

<p>1. Vendor and purchaser <9=278 — Vendor’s lien barred by lapse of time.</p> <p>Where vendor’s lien notes executed in 1910, and due, respectively, in 1911 and 1912, did-not pass to plaintiff until 1920, action thereon and upon vendor's lien reserved was barred by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5694, 5695, providing that actions on vendor’s lien notes shall be barred after the expiration of four years from the maturity of such indebtedness, for the act which gave 12 months in which to institute suit on the superior title went into effect July 1, 1913.</p> <p>2. Limitation of actions <9=34(2) — Vendor and purchaser <©=3248 — Statutes shortening time for action on vendor’s lien notes valid.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5694, 5695, shortening the time for action on existing vendor’s lien note, is valid, and-not unconstitutional as being retroactive.</p>

<p>1. Pleading <§=>110 — Plea of privilege prima facie evidence of facts alleged.</p> <p>A plea of privilege is prima facie evidence of the facts alleged therein.</p> <p>2. Railroads <§=>5'/2, New, vol. 6A Key-No. Series-Venue of suits against Federal Agent same as against carrier.</p> <p>The venue of suits against the Federal Agent on causes of action arising out of the operation of any particular railroad by the government is that fixed by law for the prosecution of such suits on such causes of action as if they had arisen against such carrier, under Federal Transportation Act 1920, § 206.</p> <p>3. Carriers <©=> 182 — Railroad held not to have “transported” shipment so as to permit venue to be laid in county over objection of other carriers-</p> <p>Where shipment was made from a point on a certain railroad and a through bill of lading issued in the name of such line for transportation over several other lines, the last of which extended into the county where suit was brought, held, that court erred in not sustaining a plea' of privilege filed by the railroads not running through' such county nor having agents or representatives therein, where the shipment in question had been taken by a sheriff before it had ever been delivered to the terminal carrier; the shipment not being “transported” by such last carrier within the meaning of Rev. St. art. 1830, § 25.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transport — Transportation.]</p> <p>4. Carriers <§=>184 — Petition must allege transportation by terminal carrier under statute permitting suit in county in which last carrier might be sued.</p> <p>Where shipment originated on one line, and through bill of lading was issued over several .other lines, a petition against all of the railroads to recover for loss of the goods, brought in the county to which the last railroad alone ran, and which alone had representatives or agents therein, must allege “transportation” by such last railroad in order to bring the case within Rev. St. art. 1830, § 25, which would permit the other roads to be sued with the last road at a place where they were not otherwise suable.</p> <p>5. Pleading @=>104(2)— Plea of privilege must aver allegations conferring venue are fraudulent.</p> <p>If allegations are made which, if true, confer venue on all defendants, it is necessary for a plea of privilege to aver that these allegations are fraudulently made.</p> <p>6. Pleading <§=>111 — Allegations conferring venue fraudulent if facts were known which would defeat venue.</p> <p>If plaintiff, knowing facts which would in law defeat venue in county in which action- was brought, makes allegations -which would confer venue in such county, such allegations are in law fraudulent.</p>

R. Ewing, Judge. Suit by B. P. Crow and others against George A. Van Ness, Lela Irene Van Ness, and another, to correct an alleged mistake in a prior judgment, in which the defendant Lela Irene Van Ness prayed that the prior judgment be set aside as against her. From a judgment awarding defendant Lela Irene Van Ness, an undivided half interest in the land affected by the judgment, plaintiffs appeal.

<p>1. Trusts @=343 (2) — Parol proof to show conveyance was in trust admissible under parol agreement.</p> <p>Proof of a trust agreement in reference to a conveyance is not objectionable as varying or contradicting the deed; such proof not proceeding upon the idea that the deed is not the conveyance it purports to be.</p> <p>2. Trusts <®=I3 — Consideration need not be paid at time of execution of deed to create an express trust.</p> <p>The rule that the facts which show a trust in land, such as payment of consideration at the time of the execution of the deed, and that no prior or subsequent verbal agreement of the parties will create a trust, is true only of resulting trusts and is not true of an express trust.</p> <p>3. Trusts <§=43(I)— Evidence of transactions occurring after execution of deed held admissible to show a practical construction of an alleged parol trust agreement.</p> <p>In an action to have a trust declared! in land, evidence that plaintiff went into possession of property as manager after the conveyance of land to defendant, that he had charge of the whole matter, paid out and borrowed money, paid the bills for the firm, composed of the defendant and himself, that the capital used by the firm was money borrowed by him and cheeked out by him, that certain notes introduced in evidence, signed in the firm name, were executed by him, and that it was agreed between the parties that the interest due the state upon certain sections of the ranch property should be paid by all of the firm, and a statement as to how he paid the interest, that he did not pay the taxes for certain years as the property was rendered in defendant’s name, but that the taxes were paid by the firm’s check, was admissible as tending to show a practical construction of the alleged trust agreement by the parties, and that the parties had recognized and acted upon such agreement.</p> <p>4. Trusts <®=44(l) — Parol trust established by testimony of one witness.</p> <p>As an abstract proposition it is no longer the rulé that a parol trust cannot be established by the testimony of one witness.</p> <p>5. Limitation of actions <§=103(2) — Bar of four-year statute does not run against action to have trust declared in land until repudiation.</p> <p>The statute of limitation- of four years does not constitute a bar to an action to have a trust declared in land until four years-after the holder of the legal title repudiates the trust.</p> <p>6. Limitation of actions <§=I03(2) — Action to have trust declared in land held not stale demand under ten-year statute.</p> <p>Where son did not bring action to have trust declared in land by reason of talks with his father with reference to his interest in the land, when father stated that he only refused to divide the land because he was not ready to quit and wanted to handle it as a whole, and did not repudiate the trust until just four years before the action, held, that the action was not a stale demand under the ten-year statute of limitations.</p> <p>7. Landlord and tenant <§=61 — Evidence held to justify finding that plaintiff in action to have trust declared in land did not lease the land from defendant.</p> <p>In an action to -have a trust declared in land, plaintiff claiming an undivided interest therein, evidence held, to justify a finding that a lease of the land from defendant to plaintiff was but a lease of defendant’s interest therein; defendant claiming that plaintiff was estopped to claim any interest in the land.</p> <p>8. Trusts <§=44( I)— Evidence held sufficient to justify finding of parol agreement to hold land in trust.</p> <p>In an action by a son against father to have a trust declared in land, plaintiff claiming an undivided interest therein, evidence held, sufficient to support a verdict for plaintiff.</p>

Sonfield, Sp. C. J., dissenting. Appeal from District Court, Brazoria County; R. L: Cole, Special Judge. Suit in trespass to try title by Nelson Davis and others against the Texas Company and others. Judgment on a directed verdict for defendants, and plaintiffs appeal.

R. Spencer, Judge. Suit by J. J. Didier against Mrs. Louise Didier McDonald Woodward, and her husband, who instituted a cross-action against plaintiff, and made certain heirs parties thereto. Judgment for named defendant, and plaintiff and others appeal.

R. Warren, Judge. Suit by Longley & Reeves against Yancy Miller and others, consolidated with a suit against plaintiffs by T. H. Glezen. Prom the judgment rendered, the plaintiffs appeal. Appellants, partners, sued appellees Yancy Miller, Tiny Miller, and Johnnie Wilks on a promissory note for $1,500 and an open account for $699.55, which they claimed said appellees owed them.

Suit by Mrs. E. V. Peterson and others against Calvin F. Mason to recover on notes given for the purchase of land. Judgment for plaintiffs, and defendant appeals.

<p>1. Brokers <§=^84(I) — Proof of listing contract and procurement of purchasers prima facie casei and burden on vendor to prove commission dependent on consummated sale.</p> <p>In an action by brokers to recover a commission for furnishing purchasers under a listing contract, where defendant affirmatively alleged he contracted with plaintiffs that no commission should be paid unless sales were actually consummated, and plaintiffs assumed responsibility for getting the signature of defendant’s wife to the deed, proof by plaintiffs of the listing contract and furnishing of purchasers ready, willing, and able to buy on terms stated, constituted a prima facie right to recover, and the burden of proving plaintiffs were not to have any commission unless sales were actually consummated and defendant’s wife signed the deeds, was on the defendant; such matters alleged in defense being in the nature of pleas in confession and avoidance</p> <p>2. Evidence <®=91— Burden of proof rests on party alleging facts constituting issue.</p> <p>The general rule is that the burden of proof to establish the affirmative of an issue involved in an action rests on the party alleging the facts constituting that issue, and remains there until the end.</p> <p>3. Appeal and error <@=^273 (6) — Error in charging as to burden of proof held fundamental, and. reviewabie on exception made.</p> <p>Where court, following special issues, advised jury that burden of proof was on plaintiffs to establish their case by a preponderance of the evidence, and defendant excepted on the ground that the charge was misleading, and might cause the jury to believe that burden of ■ proof rested on plaintiffs with reference to all of the special issues, whereas the burden of proof rested on defendant in respect to certain specified issues, Jield, that plaintiffs placed themselves in position to insist on the error on appeal; the rule that the burden of proof rests on party alleging facts constituting issue being fundamental.</p> <p>4. Brokers <®=»49(2) — Brokers procuring signing of option contract held entitled to compensation for furnishing purchaser.</p> <p>Brokers were entitled to a commission for furnishing purchasers ready, able, and willing to purchase, though only an option contract was entered into, where such purchasers were willing to close the deal, even after time limit fixed by option contract had expired.</p> <p>5. Brokers <⅞=»6( (3)— Entitled to commission, though wife of owner will not join in conveyance.</p> <p>When landowner lists property with broker, and a purchaser is found, ready, willing, and able to accept it, he cannot avoid liability to the broker for commissions on the ground that his wife refuses to execute a deed.</p> <p>6. Brokers ⅞=>61 (3) — Wife’s homestead interest not “incumbrance” or “defect in title.”</p> <p>Wife’s homestead interest in property is neither an “incumbrance” nor a “defect in the title,” such as would prevent recovery of commissions from the husband by a broker under a contract with the husband to obtain a purchaser.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Incum-brance (in .Title).]</p> <p>7. Brokers <®=>6I (3) — Refusal to consummate transaction because wife would not sign tantamount to abandonment.</p> <p>While action of landowner in refusing to consummate contracts for the conveyance of land, because of the fact that his wife would not sign with him, may not have been a technical abandonment of the contracts, the result, in so far as the right of the brokers, employed to procure the purchasers, and the purchasers, were concerned, was tantamount to an abandonment.</p>

Apspeal from District Court, Henderson County; John S. Prince, Judge. Suit by Caladonia Holmes against the Woodmen of the World. Verdict and judgment for plaintiff, and the defendant appeals. The appellant is a fraternal beneficiary association incorporated under the law of Nebraska, and with a permit to do business under the law of Texas.

<p>1. Criminal law <⅜=>641(3) — Appointment of counsel for accused unnecessary, unless charged with a capital offense, or insane, or desiring to present application for suspended sentence.</p> <p>It was not obligatory on the court to appoint counsel for one accused of crime, unless he be charged with a capital offense (Vernon’s Ann. Code Cr. Proc. 1916, art. 558), or it appear that he is insane (article 1021), or that he desires an application to be presented for a suspended sentence.</p> <p>2. Criminal law <§=>918(9) — Absence of defendant’s counsel not cause for new trial, unless deprived of counsel by state’s action or outside influence beyond defendant’s control.</p> <p>Abandonment of a defendant’s case by his counsel is no cause for new trial, unless the defendant was deprived of counsel by the action of the state or some outside influence over which he had no eontrpl.</p> <p>3. Criminal law @=>918(9) — New trial for absence of counsel held properly denied.</p> <p>Where defendant was not insane, and not charged with a capital offense, and his plea of suspended sentence was prepared, presented, and duly submitted to the jury, and it is not shown why counsel, had by appellant prior to the call of his case for trial, refused to proceed therewith, and'no fraud or misrepresentation is attributed to said counsel, or charged against the state, and it is not shown that his failure to have counsel was due to any influence over which he had no control, failure of counsel to appear and defend will not warrant the granting a new trial.</p> <p>4. Criminal law <§=>!, 144(12) — In the absence of contrary showing, presumption is in favor of the admissibility of evidence objected to.</p> <p>In a prosecution for assault to murder, in the absence of a contrary showing, the presumption of the Court of Criminal Appeals necessarily would be in favor of the admissibility of statements made by the defendant to another after, the shooting, not shown to have been made to an officer or to any person who had appellant in custody, or under other circumstances which would make the same inadmissible.</p> <p>On Motion for Rehearing.</p> <p>5. Criminal law <©=> 1036(1) — Assignment of error held not reviewable for lack of objection on trial.</p> <p>An assignment objecting to the testimony of a justice of the peace as to statements made just after the shooting by the defendant, convicted of assault to murder, where the felony was committed in view of such witness, cannot be considered, in the absence of any objection made on the' trial of the case, particularly where there was no question as to defendant’s having shot the injured party, and such statements were probably admissible as res gestae.</p> <p>6. Criminal law <©==>641 (I) — 'Trial court’s appointment of counsel to prepare pleading and select jury held not to have misled defendant into believing that they would continue their services.</p> <p>Defendant, convicted of assault to murder, having had the benefit of consultation and advice from counsel of his own choice, who abandoned his case when the trial was ready to begin, and of counsel appointed by the court in preparing an application for suspended sentence, and of another counsel appointed by the court to aid in selecting a jury, cannot plead that he was thereby misled into believing that such counsel would continue their services, when, so far as is shown, they withdrew when they had finished the task requested of them by the trial court, without any misunderstanding.</p>

<p>Appeal from Tarrant County Court; Hugh L. Small, Judge.</p> <p>E. C. Carlson was convicted of selling bread under weight, and appeals.</p>

<p>Criminal law <S=»I094 — Judgment affirmed, in absence of bill of exceptions, statement of facts, and fundamental error.</p> <p>Where there are neither bills of exceptions, statement of facts, nor fundamental error revealed by the record, the judgment will be affirmed.</p>

<p>1. Judgment <S=163 — 'Truth of defense not a proper subject of inquiry in passing on motion to set aside default judgment.</p> <p>The truth or falsity of a defense alleged in a motion to set aside a default judgment is not a proper subject of inquiry in passing upon the motion,.</p> <p>2. Judgment <3= 162 (3) — Whether default was taken in violation of agreement held proper subject of inquiry for motion to set aside default.</p> <p>Where default judgment was taken in an action on notes, and defendants sought to set aside the default on the ground that plaintiff had violated an agreement whereby he was to be allowed to make a crop before making payment, it was proper for the trial court to hear evidence as to whether or not the agreement had terminated.</p> <p>3. Judgment (43(2)— Court on motion to set aside default judgment must determine whether defendant is to be excused and if he had meritorious defense.</p> <p>On motions to set aside default judgments, a court must determine from the proof whether or not the failure of defendant to appear is to be justified and excused, and from the allegations of the verified motion whether or not he has a meritorious defense.</p> <p>4. Judgment <3=162(2) — Burden on defendant to show that default was taken in violation of agreement.</p> <p>On a motion to set aside a default judgment alleged to have been taken in violation of an agreement, the burden was on defendant to show such agreement.</p>

<p>Error from District Court, El Paso County ; Ballard Coldwell, Judge.</p> <p>Action by the Security Bank & Trust Company against M. W. Stanton and another. Judgment for plaintiff, and cross-action of the named defendant against his co-defendant dismissed, and the named defendant brings error.</p>

<p>1. Mines and minerals ⅞£=>51 (3) — General allegation of ownership of claim sufficient against general demurrer.</p> <p>In an action for conversion of ores removed from a mining daim, the general allegation that plaintiff was the; owner of the claim is sufficient as against general demurrer.</p> <p>2. Mines and minerals <3=o5l (3) — Mere allegation of ownership of claim not sufficient against special exceptions.</p> <p>Even in an action for the conversion of ores, a mere general allegation that plaintiff was the owner of the daim from which the ores were taken would be insufficient against a special exception.</p> <p>3. Appeal and error <@=;80(I)--Judgment for plaintiff, not mentioning counterclaim, is final.</p> <p>In an action in which the defendant filed a cross-action, a judgment for plaintiff for less than the amount due from the garnishee, without any mention of the cross-action, is res ju-dicata as to the cross-action, and therefore a fipal judgment, from which an appeal may be taken.</p> <p>4. Courts ⅞5=»7 — Action for ore removed by trespasser from claim is transitory.</p> <p>An action for the conversion of ores removed from a mining daim, the title to which was in the government, is transitory, and may be brought in a state other than that in which the claim is located, though the respective rights of the parties to take the ore from the daim rested on whether a proper location had been made and had been followed by doing the annual assessment work.</p> <p>5. Estoppel <9=>95 — Mere silence does not estop recovery against purchaser from trespasser.</p> <p>Mere silence by the party entitled to possession of a mining claim does not defeat his right to ore taken therefrom by a trespasser and sold to an innocent purchaser, though of course the owner’s consent to such taking would defeat his right.</p> <p>6. Appeal and error <§⅛»931(3) — Presumed trial court found facts to support judgment.</p> <p>Where there was no request for a finding as to the consent of the owner of a mining claim to the removal of ore therefrom, and there was evidence affirmatively disproving such consent, it will be presumed that the trial court found against such consent, to support its judgment for plaintiff.</p> <p>7. Mines and minerals <⅜=>29(4) — Void relocation does not give right to ore extracted.</p> <p>An attempted relocation of a mining claim, which was void because ¿the claim was then held ■under a valid location by others, who had done all assessment work thereon, does not entitle the reloeators to the ore taken by them from the claim, though they were in actual possession of it.</p> <p>8. Mines and minoráis 3⅛>51(3) — Defendant cannot recover for expenditures on ore purchased from trespasser, without pleading facts.</p> <p>In an action for the conversion of ore taken from a mining claim by trespassers, the .purchasers cannot recover for their expenditures on the ore, where they did not plead nor prove the items of such expenditures.</p> <p>9. Mines and minerals <®=»51(5) — Trespassers cannot recover expense of taking out ore.</p> <p>In an action for the conversion of ore removed from a mining claim by trespassers, the trespasser’s are not entitled to compensation for the expense of removing and shipping the ore.</p> <p>10. Mines and minerals ®=>51(3) — Deeds executed after suit for conversion of ores executed to replace lost deed held admissible.</p> <p>A deed, which was executed after the suit was brought for conversion of ores removed from a mining claim, but which showed on its face that it was executed in lieu of a prior deed, which had been lost, was admissible in that suit in support of the evidence that plaintiff had purchased the claim from which the ore in controversy was removed before its attempted relocation by defendants.</p>

<p>1. Injunction @=>120 — Petition in suit to restrain defendants from conducting millinery business held good as against genera! demurrer.</p> <p>In a suit by a purchaser of a millinery business to restrain the vendor from re-engaging in such business in her own name after having entered into an employment contract with complainant, petition held good as against general demurrer.</p> <p>2. Malicious prosecution @=368 — Punitive damages not recoverable for wrongfully suing out injunction.</p> <p>Punitive damages are not recoverable for wrongfully suing out a writ of injunction, no matter how improper or malicious the motive.</p> <p>3. injunction @=>257 — Fraud, malice, or oppression must be present to warrant recovery of exemplary damages for wrongfully suing out writ.</p> <p>Either fraud, malice, or oppression must be present to allow a recovery of exemplary damages for wrongfully suing out a writ of injunction if such damages are recoverable in such case.»</p> <p>4. Vendor and purchaser @=399 — Payment or tender of amount due defeats rescission of executory contract for nonpayment of consideration.</p> <p>While a vendor of land under an executory contract may sue for rescission and recover the land on default, of the purchaser in paying the consideration, yet the purchaser may defeat the rescission by paying or tendering the amount due.</p> <p>5. Mortgages @=>39 — Whether conveyances absolute in form constitute mortgage held for jury.</p> <p>In a suit to enjoin defendant from conducting in her own name a millinery business sold to plaintiff under absolute conveyances, wherein defendant contended that the conveyance constituted nothing but a mortgage, the question held for the jury under conflicting evidence.</p> <p>6. Estoppel @=>52 —“Equitable estoppel” defined.</p> <p>“Equitable estoppel” is a bar which prevents the party against whom it is pleaded from denying the truth of a fact because the party asserting estoppel has-changed his position and has parted with some right by reason of the representation of conduct constituting the es-toppel.</p> <p>7. Estoppel <§=>68(2) —Statements under oath that nothing was owing held not to estop plaintiff from claiming indebtedness under conveyance.</p> <p>In a suit to enjoin defendant from' conducting a millinery business sold to plaintiff, wherein defendant claimed that the conveyance constituted but a mortgage, that, plaintiff, in answer to a writ of garnishment issued out of a suit against defendant, answered under oath that he did not owe her anything, held not to stop plaintiff from claiming that the instruments under which he held were absolute conveyances, no element of injury to defendant appearing.</p> <p>8. Partnership <§s=9(I) — Investment of money or property in business against services of another under agreement to share profits held a partnership contract.</p> <p>A contract whereby one party puts his money op property into a business against the services and skill of another under a mutual understanding to share the profits may be said to be a partnership contract in the absence of circumstances opposing such construction.</p> <p>9. Partnership <§=>122 — Whether agreement was a partnership agreement held for jury.</p> <p>In a suit to restrain defendant from operating a millinery business under her own name in violation of an agreement, claimed by plaintiff to be one of employment, and by defendant to be one of partnership, the ascertainment of the nature of the contract was for the jury whore the question was one of mutual intention and understanding hot under an ambiguous instrument.</p> <p>10. Chattel mortgages <®=>40 — Whether bill of sale constituted chattel mortgage held for Jury.</p> <p>In a suit to enjoin defendant from operating a millinery business in her own name in violation of an agreement, whether a bill of sale by defendant to plaintiff should be construed as a chattel mortgage held for the jury.</p> <p>11. Reference <§=>100 (3) — Motion to suppress auditor’s report made two years after held properly overruled.</p> <p>A motion to suppress an auditor’s report on the ground that the court had failed to prescribe his powers and duties in the order of appointment, made more than, two years aftei such report was filed, held properly overruled.</p> <p>12. Appeal and error <§=>1067 — Refusal of instruction as to effect of contract not reversible error where not harmonious with construction by jury.</p> <p>In a suit to enjoin defendant from conducting a millinery business in her own name in violation of an agreement claimed by plaintiff to be one of employment, but by defendant to be one of partnership, it was not reversible error to refuse to instruct that in determining the rights of the parties defendant was liable only for one-half of sums received by her where the jury had found the contract to be one of employment, and not of partnership, such contract explicitly fixing defendant’s compensation.</p> <p>13. Evidence <§=>121 (3) — Ex parte statements as to delivery of deed held inadmissible as res gestas in determining whether absolute deed constituted mortgage.</p> <p>In a suit to restrain defendant from operating a millinery business in her own name in violation of agreement claimed by plaintiff to be one of employment, but by defendant to be one of partnership, under absolute conveyances intended, in fact, to be mortgages, a letter which was an ex parte statement of defendant uncommunicated to plaintiff as to delivery of the deed to plaintiff upon payment of a certain amount held inadmissible, as res gestse.</p> <p>14. Evidence <§=>213(1) — Declaration and admissions in effort to settle inadmissible.</p> <p>The law favors compromise settlements and' the long established policy is that declarations and admissions made in an effort to settle out of court cannot be received as evidence.</p>

<p>1. Mines and minerals <§⅛=>55(I) — Owner may convey indefeasible legal title to minerals separate and distinct from surface rights.</p> <p>Owner of land may convey an indefeasible legal title to. the minerals under the soil separate and distinct from the surface rights.</p> <p>2. Mines and minerals <§=48 — Nature of minerals; “corporeal property”; “realty.”</p> <p>Minerals, being tangible substances, may be treated in law as corporeal property, and, until separated from the soil, are part of the realty within which they lie.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Realty.]</p> <p>3. Mines and minerals @=>55(7) — Indefeasible legal title to minerals not lost by abandonment.</p> <p>The indefeasible legal title to minerals conveyed by owner reserving surface rights cannot be lost by abandonment alone so as to reinvest grantor with its original ownership' since the tenure in such case does not depend for its continued vitality upon any form of use or enjoyment of the rights granted any more than does the tenure by which .the surface rights are held under similar grants.</p> <p>4. Mines and minerals @=>55(3) — Contract held not to convey title to minerals, but merely the night to explore therefor.</p> <p>“Lease” whereby owner “sold and conveyed” the minerals in described land in consideration of a nominal cash payment and the agreement of grantee to sink a designated number of wells within a stipulated time, and whereby it was agreed that, in case the grantee “is unwilling to bore said wells, the said party of the first part shall have the right to bore same, provided there shall be preserved to each well then bored by said S. [grantee] a surrounding territory of not less than seven acres of land,” held not to convey an indefeasible legal title to the minerals, but merely to give grantee the right to explore for the minerals and bring them to the surface.</p> <p>5. Mines and minerals @==>55(1) — Grantee’s agreement to sink designated number of wells within stipulated time a sufficient consideration for conveyance of minerals.</p> <p>Agreement by grantee to sink a designated number of wells within a stipulated time would have been a sufficient consideration for the conveyance of minerals.</p> <p>6. Mines and minerals @=>55(3) — Character of instrument determined by examination of entire instrument in the light of circumstances surrounding the parties.</p> <p>The question of whether a contract conveyed the minerals or merely a right to explore for minerals is not necessarily determined from the language used by the parties to define the legal effect of the instrument, but is to be determined by an examination of the entire instrument in the light of the circumstances surrounding the contracting parties.</p> <p>7. Mines and minerals @=>78(2) — Claim of forfeiture held grantor’s only right on grantee’s refusal to either drill well or pay rental.</p> <p>Contract whereby owner conveyed minerals in consideration for a nominal cash payment and grantee’s agreement to pay a royalty as the oil is brought to the surface, and whereby it was provided that a well was to be drilled within 30 days or a payment of $50 a month made at grantee’s option, held a unilateral contract, which the grantee might ignore without incurring any liability for damages; the grantor’s only right in such case being to claim a forfeiture.</p> <p>8. Mines and minerals <⅜»77 — Lessees held not to be deprived of rights in absence of contract stipulation except by voluntary conveyance or permanent abandonment.</p> <p>Where oil lease entitled lessees to explore for oil and operate oil wells on payment of royalty to lessor, without authorizing lessor to claim a forfeiture by reason of nonuser fpr any period of time, the only way lessees could be divested was by a voluntary conveyance or a permanent abandonment of the leases.</p> <p>9. Mines and minerals <©=377 — Lesseeis held not to have abandoned lease entitling lessors to claim forfeiture for nonuser; “abandonment.”</p> <p>Lessee’s failure to operate wells during 2-year period after having drilled 21 wells on the land and after operating the wells apparently to the satisfaction of the parties for about 15 years was not an abandonment entitling lessors to claim a forfeiture by reason of nonuser, where they had been operating at a loss, were involved in financial difficulties, and where they did not remove machinery from the premises, since in such case it did not appear that they intended permanently to relinquish their rights; abandonment being the intentional relinquishment of a vested right.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Abandon —Abandonment.]</p> <p>On Motion for Rehearing.</p> <p>10. Courts <3=3247(5) — Motion to certify not granted where writ of error will lie to invoke jurisdiction of Supreme Court.</p> <p>A motion to certify to Supreme Court will not be granted by the Court of Civil Appeals where a writ of error will lie to invoke the Supreme Court’s jurisdiction.</p>

<p>1. Mines and minerals *@=»55(3) — Contract held to convey indefeasible legal title to minerals, and not merely a lease.</p> <p>Contract whereby owner “granted, bargained, sold, and conveyed” specified minerals “in and under” described land to' another, “to have and to hold forever,” in consideration of the sum of $250. and a certain portion of the royalties, and wherein it was agreed that the instrument should have the effect “to sever ail the minerals in or under said lands from the surface thereof and to sell and convey all such minerals,” held not merely a lease, but a conveyance of an indefeasible legal title to the minerals, if any, in or under the land.</p> <p>2. Mines and minerals <⅜=>48, 55(1) — Minerals are part of “realty,” and as such subject to sale and conveyance.</p> <p>Minerals, including oil and gas, are a part of the realty while in place in and under land, and as such are subject to sale and conveyance.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Realty.]</p> <p>3. Mines and minerals <@=>55(8) — Implied agreement to develop minerals within a reasonable time a covenant, breach of which entitles grantor to recover damages merely.</p> <p>An implied undertaking on the part of grantee to whom minerals had been conveyed to discover and develop minerals within a rea-* sonable time would be a covenant, a breach of which would entitle the grantor to recover damages merely, and not a condition subsequent entitling grantor, on noncompliance therewith, to a cancellation of the contract.</p>

<p>. I. Partnership <@=>-11 — Real estate broker and assistant employed by him, not having anything to do with losses, held not partners.</p> <p>Where a broker employed an assistant, who was to get half of commissions- realized from sales of land made to customers from the section of the country from which the assistant came, ¡held, that there was no partnership, but merely the relation of principal and agent; the assistant not having anything to do with losses.</p> <p>2. Brokers <@=>40, 81 — Entitled to recover for sales of land listed with agent, not known to be such by owner and broker’s agent, need not be made party to suit for commission.</p> <p>A broker could recover a commission for the sale of land listed with his agent, though the owner did not know that the person with whom he was listing the land was the agent of the broker, and the broker’s agent was neither a necessary nor proper party to a suit to recover a commission.</p> <p>3. Brokers <@=>82 (4> — Allegation that land was listed with broker sustained by proof that listing was with agent.</p> <p>'An allegation, in an action by a broker for commissions for obtaining a purchaser for land, that the land was listed with plaintiff and the purchaser procured by him and his agent, was sustained by proof that the land was listed with a third person, who was an agent of plaintiff unknown to the defendant, and that the agent performed the services.</p> <p>4. Brokers <@=>66 — Agreement to divide commissions with purchaser or another broker does not affect right to commission.</p> <p>An agreement by a broker to divide his commissions with the purchaser of real estate does not affect his right to recover; though the principal does not know it, nor will Ms agreement to divide with another broker, who is not connected with the other side.</p> <p>5. Assignments @=>23 — Broker may assign claims for commission.</p> <p>A broker, even pending a suit to recover commissions, may assign his claim to another, either, in whole or in part.</p> <p>6. Brokers <@=>18 — General rule against delegation of performance of duties without principal’s consent held not to apply to case of land listed with broker’s undisclosed agent performing services.</p> <p>The general rule that an agent, employed to perform the duties of an agency involving an element of personal trust, confidence, or skill, cannot delegate the performance of his duties to another without the consent of the principal, has no application in an action by a broker to recover commissions for sale of land listed with the broker’s agent, who was not known to be such, where the agent performed the services.</p> <p>7. Brokers <@=>82(2) — Fraud must be specifically alleged.</p> <p>Eraud must be specifically alleged, and if defendant, in action by broker to recover commissions for sales of land, wished to set up the defense that he did not want plaintiff to have any of the commissions for sale of the land, and that an agent of plaintiff, with whom the land was listed, whom he did not know to be an agent, made the fraudulent statement that he was not connected with plaintiff in any way, and plaintiff would receive none of the commissions, he must specifically allege such fraud.</p> <p>8. Trial <@=3255(12)— Defense of fraud held matter to be submitted at defendant’s request.</p> <p>In action by broker to recover commissions for sale of land listed with agent of plaintiff, not known to be such by landowner, if defendant did not want plaintiff to have any of the commissions, or anything to do with it, that was a matter of defense, to be submitted at defendant’s request, even if it be conceded that the fact was provable under the general issue; defendant claiming that the agent with whom he listed the property fraudulently stated that plaintiff was not interested and would obtain none of the commissions.</p> <p>9. Trial <@=>351 (2) — Requested charge held a sufficient request for special issue.</p> <p>In action by broker to recover commission for sale of land listed with plaintiff’s agent, court erred in submitting special issue, “Did defendant, D., have his land listed with the plaintiff?” and in refusing to further instruct that, if the person with whom the land was listed was acting as agent of plaintiff, then the listing would inure to the benefit of the plaintiff and would be a listing with him, and plaintiff need not go further and request that the court inquire of the jury whether such person was the agent of _ plaintiff, and whether the property was listed with such agent, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1970-1972, 1985, since the charge was sufficient to call attention to matter omitted from special issue.</p> <p>10. Trial <@=>351 (2) — Not necessary for plaintiff to require submission of special issues as to matters of defense.</p> <p>■ It is not necessary for plaintiff to require the submission of special issues as to matters of defense, in order to escape the presumption of an adverse finding on, such issues in support of a judgment for the defendant, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1970— 1972, 1985.</p>

<p>1. Principal and agent ⅞=»103(13) — Authority to sell does not give authority to barter.</p> <p>A general authority to sell given an agent does not give the authority to barter.</p> <p>2. Principal and agent <9=3103(13) — Purchaser of truck could rely on representation of agent as to approval of authority to exchange.</p> <p>Purchaser of a motortruck was entitled to rely upon representation of salesman that his principal, whom he telephoned, had given its approval of an exchange, instead of a cash sale, and principal was estopped to deny that the salesman had authority to make the exchange, it being the custom to permit salesmen of mo-tortrucks to make exchanges.</p>

<p>Appeal from District Court, Bed Biver County; Ben H. Denton, Judge.</p> <p>Action by A. C. Tisdale against John Barton Payne, Agent, and another. Prom a judgment for plaintiff, defendants appeal.</p>

A. ■ Works, Judge. Suit by the Adva-Talks Company against Schow Bros., Incorporated, to recover the amount' due on a contract. Judgment for plaintiff, and defendant appeals.

<p>1. Wills <§=»506(4) — 'Words “heir” and “child” regarded as synonymous, where testator so intended.</p> <p>It appearing from a will that testator regarded the word “child” and the word “heir” as synonymous, it was the duty of the court in construing the will to read the words “heir” and “heirs” as meaning “child” and “children.”</p> <p>[Ed. Note. — For other definitions see Words and Phrases, First and Second Series, Child-Children; Heir.]</p> <p>2. Wilis <S==>506(4)— Devise to heirs held to mean devise to children.</p> <p>Under a will “on the death of my wife, should she survive me, I will that my lands described as my separate property shall go, and I will and devise the same to, my brothers living and the heirs of my deceased brothers,” held, that testator intended to devise the property to the children of his deceased 'brothers, and not their heirs.</p>

<p>1. Limitation of actions <§==>46(12) — When cause of action ore assumption of mortgage debt accrues stated.</p> <p>Where purchaser of a half interest in a sawmill verbally assumed half of the seller’s mortgage indebtedness, and later bought the other half of the sawmill and verbally assumed all the mortgage indebtedness, the cause of action in the mortgagee’s favor for the part of the indebtedness due when the buyer assumed the payment thereof arose at the time the agreement to assume was made, and the cause of action for the part not then due arose when that part became due.</p> <p>2. Limitation of actions <®=>28(I), 165 — Oral promise to assume mortgage governed by two-year statute; foreclosure held proper, although' notes barred by limitations.</p> <p>Where a purchaser of a half interest in a sawmill verbally assumed payment of half the mortgage indebtedness of his vendor, and later purchased the other half, and also assumed the remaining half of the indebtedness, the contract of assumption not being a contract in writing, the two-year statute (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5687) applied, and the mortgagee could not recover a personal judgment against the purchaser, where more than two years had elapsed from the time of the assumption and maturity of the debt; but this did not prevent the mortgagee from foreclosing the mortgage assumed, the notes not having been barred at the time of the purchase.</p>

<p>1. Judgment <®=>948(!/2) — Defense of former judgment must be presented in bar, and not In abatement.</p> <p>The defense of a former judgment must be presented m bar, and not in abatement of the second suit.</p> <p>2. Judgment @=>666 — Estoppel by judgment must be mutual.</p> <p>Estoppels by judgment must be mutual, and one not bound by a judgment cannot urge it as an estoppel against another, and defendants not parties in a former action in trespass to try title to recover a small strip of land, and to establish a boundary line, cannot urge a judgment in favor of the defendant in the former case as an estoppel against plaintiff, under Rev. St. art. 7758.</p>

<p>Judgment @=>357 — Not to be set aside after term because not binding on persons not made parties.</p> <p>The court in vacation after term properly denied a motion to set aside a judgment for defendant in an action to establish a boundary line and for damages, on the ground that it was not binding on third persons whom plaintiff might properly have made parties because of interest they had in the subject-matter of the suit, where plaintiff did not show that he was deprived by fraud, accident, mistake, or other uncontrollable circumstances of the opportunity of properly presenting his cause upon the trial.</p>

<p>1. Railroads @=>352— Finding that automobilist could have safely crossed railroad at less rate of speed not irreconcilable with finding acquitting him of contributory negligence.</p> <p>A finding that automobilist could have crossed a railroad in safety, if he had reduced the speed of his car to 6 miles per hour, was not irreconcilable with a finding acquitting him of contributory negligence; the crossing not being obscured and Acts 35th Leg. (1917) c. 207, § 17 (Yernon’s Ann. Pen. Code Supp. 1918, art. 820Í), not applying.</p> <p>2. Railroads @=>346(5) — Automobilist killed at crossing presumed to have taken precautions.</p> <p>In an action for death of automobilist at crossing, the presumption is, in the absence of evidence to the contrary, that he took the ordinary precautions.</p> <p>3. Railroads @=3350(16) — Failure to look and listen not plways contributory negligence.</p> <p>Failure of an automobilist to look and listen before crossing a railroad track is not, under all circumstances, contributory negligence.</p> <p>4. Death @==>99(3) — $12,562 held not excessive for death of 17 year old son.</p> <p>A verdict for $12,562 A eld not excessive for loss from wrongful death of services of a 17 year old son, who was intelligent and dutiful, and relieved plaintiff of many of her business burdens, and had an estate of his own, from which he might have assisted her beyond what he earned.</p>

<p>1. Census <S=>2— General definiton of “census” must be considered in light of acts of Congress for taking it.</p> <p>The general definition of the “census” as an official enumeration of people and as a public record containing not merely a sum total, but an official list of the names of all the inhabitants, and subject to public inspection, must be considered in relation to the national census in the light of the acts of Congress authorizing the taking of the census under consideration.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Census.]</p> <p>2. Taxation <©=>546 — Census takes effect to determine population of county as to election of tax collector when portion relating thereto is completed and ready to be officially promulgated.</p> <p>The national census which determines whether a county shall elect a tax collector under Const; art. 8, § 16, is so much of the last national census* relating to the population of that county as had been completed and ready to be officially published.</p> <p>3. Census <©=>7 — Official notice cannot be taken until authorized announcement.</p> <p>Until the law for the taking of a national census authorized the announcement of the enumeration, no official notice of the census as such can be taken.</p> <p>4. Census <®=»7 — Taxation <©=>546 — Issuance of bulletin giving population of county is official promulgation of census as respects election of tax collector.</p> <p>Since Act Cong. March 3, 1919, providing for the fourteenth and subsequent decennial censuses, did not expressly provide for the official promulgation of the results of the censuses, and did not expressly repeal Act March 6, 1902 (Comp. St. § 4414), authorizing the Director of the Census' to publish and distribute bulletins and reports of the results of the various investigations by him, the issuance of a bulletin by the Director of the Census stating the population of a particular county is the completion of the census as to that county, of which official notice can be taken in determining whether the county has a population entitling it to elect a tax collector.</p> <p>5. Census <$zz>7 — Certificate that bulletin was subject to correction does not prevent its being complete.</p> <p>The fact that the Director of the Census issued a certificate stating the population -of the county as shown by the census bulletin issued by him to be subject to correction, though in fact it was not thereafter corrected, does not make the bulletin incomplete as the promulgation of the census of that county or prevent official notice being taken of the population as therein stated.</p>

<p>Insurance <©=> 145( 1) — Insurer held not liable on its fourth policy on goods where its agent was not advised that they had been removed to a place requiring a higher rate.</p> <p>Where, when defendant company issued its fourth insurance policy on plaintiff’s cotton, its agent did not know that the cotton had been removed to the compress, and wrote the policy at a lesser rate than he would if he had so known, and the plaintiff, without reading it, put it away among his papers, and the cotton was destroyed, it was error to render a judgment against the defendant for the insurance, for, on renewal, the insurer ¡may assume that the subject-matter and its location are as described in the former contract, and insured could not excuse his failure to notify the insurer of the change of location on the ground that he did not know a change of locations affected the risk, as that is matter too obvious to be overlooked by a person of ordinary prudence.</p>

Action by Manuela Barrera de Gonzalez and others against Virginia Cox de Guerra and others in trespass to try title. Judgment for plaintiffs, and defendants appeal.

<p>1. Appeal and error <©=?239 — Assignment of error involving answer to special issue considered, though no objection was made to special issue before charge was read.</p> <p>An assignment of error that verdict is unsupported in that answer to special issue had no evidence to sustain it considered, though no objection to special issue was made before charge was read to jury, where objection was made in motion for new trial.</p> <p>2. Banks and banking 188*/2 — Transmitting bank held negligent in not informing paying bank,- after miscarrying of telegram, of the condition prerequisite to payment.</p> <p>Where a bank as plaintiff’s agent had the defendant bank transmit money to a Chicago bank and wire that bank to pay it to a named person on his delivery of a bill of lading covering 10 automobiles, and the defendant bank had knowledge through a letter from another Chicago bank that the telegram had been misde-livered, and after knowledge thereof did not take steps- to- inform the original Chicago bank of the bill of lading requirement, and the money sent was paid without securing the hill of lading, and no goods were ever received by the plaintiff in return for the money, the negligence of the defendant bank was the proximate cause of the loss, and it was liable.</p> <p>3. Banks and banking 188,½ — Agreement of o-ne bank to relieve another from liability in transmission of money held not to relieve it from its own negligence.</p> <p>Defendant bank, failing to inform a paying bank of- the condition on which the money transmitted was to be paid, could not be relieved from its own negligence by the agreement of another bank as agent of plaintiff to relieve it from any loss in transmitting the money.</p>

<p>Evidence <§=»387(4)— Of marked line conflicting with boundary description is inadmissible.</p> <p>In an action where the location of a boundary line was in controversy, evidence of the existence of a marked line, which did not conform to the description of natural and artificial monuments in the patent, and conflicted with the courses and distances in the field notes, is inadmissible as parol evidence contradicting the field notes.</p>

Action by O. C. Burke against Nick Brau-miller and another. Judgment for plaintiff, and defendants appeal. On motion to certify questions to the Supreme Court.

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Action by B. E. Garrard against J. P. Cantrell and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Damages <§=>81— Agreement for forfeiture of cash payment one for liquidated damages.</p> <p>Where a contract for the purchase and sale of land provided for forfeiture of a cash payment in event of the purchaser’s failure to consummate the contract, the agreement was one for liquidated damages; it appearing that, due to the discovery of gas in the vicinity, real estate fluctuated, and that the property also had a speculative value as trackage for a railroad.</p> <p>2. Evidence 18 — Courts will take judicial notice of effect on real estate values of discovery of gas.</p> <p>The courts will take judicial notice of the fluctuating value of real estate as the result of discovery of gas in the vicinity.</p> <p>3. Damages <§=>59 — Fact that vendor made equally advantageous sale no defense to provision for liquidated damages.</p> <p>Where the parties agreed that in the event of the purchaser’s nonperformance he should forfeit a cash payment -as liquidated damages, the fact that his vendor later made an equally advantageous sale is no defense to a claim for such damages.</p> <p>4. Appeal and error <§=>1001 (I) — Findings on sufficient evidence not disturbed.</p> <p>A finding of the jury on sufficient evidence will not be disturbed.</p> <p>5. Husband and wife <§=>187. — Where husband was willing to join in conveyance, separate agreement by married woman to sell her own property not void.</p> <p>Under Yernon’s Ann. Oiv. St. Supp. 1918, art. 4621, an agreement by a married woman, made in the absence of her husband, for the sale of her separate property, is not void, where, the husband was willing to join her in the conveyance, and joined her in an action for breach thereof.</p> <p>6. Damages <§=>83 — Whether provision is for penalty or liquidated damages for court.</p> <p>Whether a provision in a contract is one for a penalty, or liquidated damages, is one for the court, and not for the jury.</p> <p>7. Husband and wife <§=>90 — Plea of coverture personal to married woman.</p> <p>The plea of coverture is personal to a married woman, and where her contract is otherwise valid, and she desires enforcement, the opposite party cannot defeat it on the ground of her coverture.</p> <p>8. Vendor and purchaser <§=>327 — Broker not necessary party to action for breach.</p> <p>Whore a contract 'provided for payment by the vendor of a commission to a broker, and for payment of one-half of the cash deposit in event of forfeiture, the broker was not a necessary or proper party to an action to forfeit the cash payment; his interest being contingent.</p> <p>9. Evidence <§=>213(2) — Testimony as to statements by purchaser not offer of compromise, but admissible, as practical construction of contract.</p> <p>In an action for breach of contract for the purchase of land, which provided for forfeiture of cash payment in event of purchaser’s default, testimony by vendor’s husband that the purchaser stated he wanted to take the property, but was not able, and did not want to pay the damages, together with a further statement that, if a 60-day option was made, he would take the property, was admissible to show a practical construction by the parties of the provision for liquidated damages, and breach, and was not objectionable as being evidence of a proposition to compromise.</p>

<p>1. Judgment @=>572(2) — Entry sustaining exception to petition not a final Judgment.</p> <p>An entry on the trial docket that defendants’ exception to plaintiff’s petition was sustained was not a final judgment amounting to res judicata, though it recited that plaintiff excepted to the ruling and refused to amend and gave notice of appeal, as there is no such thing as an automatic-judgment, and affirmative judicial action by the court is necessary.</p> <p>2. Judgment @=5217 — Award of judicial consequences held to be attached to facts essential to “final judgment.”</p> <p>To constitute a “final judgment,” the record must affirmatively show, not only that the court expressed its opinion as to the merits of the case, but that it awarded the judicial consequences which it held that the law attached to the facts, and there is no final judgment until the court by affirmative action has applied the law to the facts and pronounced a judgment in favor of one and against the other party to the litigation.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]</p> <p>3. Lis pendens @=>25(4) — Purchaser, under attachment obtained pending suit to set aside transaction involving land, held charged with notice.</p> <p>Where a wife’s suit against her divorced husband to set aside a settlement of their property rights and a conveyance of land to the husband pursuant thereto was pending when a creditor of the husband, which subsequently purchased the land at sheriff’s sale, acquired an attachment lien thereon, it was charged with notice under the rule of lis pendens, and could not claim to be an innocent holder without notice.</p> <p>4. Husband and wife @=>129(2) — Purchaser at sheriff’s sale for pre-existing debt, held not entitled to plead estoppel against third person.</p> <p>A creditor, purchasing land of the debtor at sheriff’s sale and crediting its bid upon a pre-existing debt, was not entitled to plead estoppel against the debtor’s divorced wife, in her suit to set aside the conveyance of her interest in the land to the debtor.</p> <p>5. Husband and wife @=>129(5)— Husband’s representations concerning ownership .of land held not to estop divorced wife.</p> <p>A debtor’s representations to a creditor that he owned lands which the creditor subsequently purchased at sheriff’s sale, and that the title stood in his name, could not estop his divorced wife from asserting that her conveyance of her interests in the land to him as part of a property settlement was obtained by fraud, where he was not the wife’s agent, especially where the wife had conveyed to him all of her interest in the property, and had theretofore brought suit to have the conveyance and settlement set aside on the ground that they were unjust; unfair, and inequitable.</p> <p>6.Trusts @=>93— Husband, acquiring more than share of community property under separation agreement, holds excess in trust.</p> <p>If, in an agreement of separation and settlement of property rights between a man and his wife, who thereafter obtained a divorce, the husband obtained more than his just share of the community property, he held the excess over and above his just share in trust for the benefit of the wife because of the fiduciary or trust relation presumed by law to exist between husband and wife, and equity will impress a trust thereon, especially where the wife’s interest was at least three times as much as the husband agreed to pay therefor.</p>

<p>1. Frauds; statute ¿of <@=>110(1) — Stipulation in forfeit note insufficient as to description of land to take case out of statute.</p> <p>Stipulation in note, that it was given as a forfeit on 331% acres of land, in case the maker gave perfect title thereto in a reasonable time the note to be null and void, and as soon as he delivered deed to 331% acres of land out of “J. Burns survey” to plaintiff, was insufficient to take the case out of the statute as to contracts for sale of lands, as it does not contain a sufficient description of the land, and does not refer to any record or other document in aid of the description given.</p> <p>2. Frauds, statute of ⅞=>128 — Note executed in aid of parol contract for sale of lands unenforceable for want of consideration.</p> <p>Where a contract for the sale of land was not in writing, a note executed in aid of such contract was wanting in consideration, and is not enforceable.</p>

<p>Appeal from- District Court, Hale County; H. C. Randolph, Special Judge.</p> <p>Action by Alex M. Anderson and another against John D. Seale and another. From an order overruling motion for an order to sustain pleas of privilege and continuing cause -until next term of court, defendants appeal.</p>

<p>Appeal from District Court, Wichita County; H. E. Weldon, Judge.</p> <p>Walter Henderson was convicted of murder, and he appeals.</p>

<p>1. Judgment <&wkey;379(l) — Excuse must be offered where motion for new trial after judgment is not filed within two days.</p> <p>Where a motion for new trial is not filed within two days -after notice of rendition of judgment for the amount sued for, on defendant’s failure to appear on the day the case was called for trial, the granting of the motion rests largely within the discretion of the trial court, and the delay imposes on the moving party, not only the duty of showing some excuse for the' failure to sooner move for new trial, but of showing that it has a meritorious defense to the plaintiff’s suit.</p> <p>2. Judgment <§=3384 — Defendant, on motion for new trial, held not to show meritorious defense.</p> <p>A motion for new trial after rendition of judgment in favor of plaintiff, on failure of defendant to appear on the day set for trial, stating that the case was based on alleged fraudulent representations made by an agent, and that “such representations could not be binding * * * under the'application and contract,” held not to show that defendant had a good and meritorious defense; statements in reference thereto being mere legal conclusions.,</p>

Error from District Court, McLennan County; H. M. Richey, Judge. Suit by the Early-Foster Company against the Mid-Tex Mills and others. Judgment for defendants, and plaintiff brings error. On motions to advance and to strike the statement of facts.

<p>1. Waters and water courses <&wkey; 125 — Evidence of damages for overflow insufficient.</p> <p>In an action against a railroad for damages arising from overflows on plaintiff’s land and crops, evidence as to the damages to plaintiff’s crops held insufficient to sustain an award for more than the sum of $25.</p> <p>2. Waters and water courses <&wkey;>!25 — Damages recoverable for overflow.</p> <p>If plaintiff’s crops had not matured and were not ready for harvesting at the time of their overflow caused by defendant railroad and the Director General of Railroads, the charge of the court should be so framed that the expense of cultivation should be taken into consideration, as well as that of harvesting, on the measure of'damages; also the charge should guard against assessment of any damages for permanent injuries for any period barred by limitation.</p> <p>3. Waters and watercourses &wkey;G 25 — Damages for deprivation of use of land through overflow and for permanent injuries not double.</p> <p>In an action against a railroad for damages to plaintiff’s land and crops through overflows, damages for deprivation of the use of the land in a year and also for permanent injury to the land for tie same period did not overlap nor constitute double damages; such elements being separate and distinct.</p> <p>4. Waters and water courses &wkey;> 126(1) — Plaintiff required to plead character of crops damaged by overflows.</p> <p>In an action against a railroad for damages to plaintiff’s land and crops by overflows, refusal of the trial court to sustain special exceptions to parts of the petition and plaintiff’s trial amendment, especially with relation to the failure of the petition to advise defendants of the character of the crops it was claimed plaintiff was prevented from raising by virtue of the overflows, held erroneous; plaintiff should have been required to plead the character of crops he was prevented from raising and the character of crops which it was alleged were damaged.</p> <p>5‘. Waters and water courses &wkey;j 126(1) — Averments of petition for damages to land and crops from overflows sufficient.</p> <p>In an action against a railroad for injuries to plaintiff’s land through overflows, where the claim was for permanent injury to the entire land, the averments were sufficient to admit proof of only partial injury to the land as against exceptions that the pleadings did not apprise defendants of the area or quantity permanently injured.</p>