Volume 234 — South Western Reporter

<p>Error from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Suit by M. E. Martin against H. A. Long and another. Judgment for plaintiff, and defendants bring error.</p>

District Court, Navarro County ; H. B. Daviss, Judge. Suit by Leana Vinyard, individually and as independent executrix, against W. F. Dunn and others. Judgment for plaintiff, and defendants appeal. E. B. Dunn, a widower with children by two deceased wives, and Mary E. Hill, a widow without children, were married June 11,1876. No child was born of the marriage.

<p>Appeal from District Court, Gray County; W. R. Ewing, Judge.</p> <p>Action by W. A. Taylor and others against M. B. Davis and others. Judgment for defendants, and plaintiffs appeal.</p>

O. Beard, Judge. Action by M. Turney against A. E. Findley, the Overland Automobile Co. of Dallas, and another, with cross-action by the Overland Company. Judgment for plaintiff and for the Overland. Company against defendants, adjudging that plaintiff’s lien was superior to that of the company, and the company appeals.

E. Aslie, Judge. Suit by E. A. Giraud against J. W. Wilson, in trespass to try title. Judgment for defendant for land sued for in the cross-bill, except such as was adjudged to plaintiff, and from the judgment for plaintiff, the defendant appeals. Order denying rehearing set aside, and questions certified to the Supreme Court. Questions answered. 231 S. W. 1074. Rehearing denied.

Suit by A. Hoffman and others against the City of Dallas. Judgment for plaintiffs granting temporary injunction, and defendant appeals.

Suit by A. Harris & Company against B. E. Crosby and wife. Judgment against the defendants individually and jointly for the amount sued for, and the defendant, B. E. Crosby, alone, excepted and appeals.

<p>Appeal from District Court, Limestone County; A. M. Blackmon, Judge.</p> <p>Suit by Limestone County against S. B. Knox and others. Judgment of dismissal, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by County of Harris against James Charlton, county treasurer, and others. Judgment for plaintiff and defendants appeal.</p>

Error from District Court, San Augustine County; W. T. Davis, Judge. Trespass to try title by H. B. Caddell and others against the Lufkin Land & Lumber Company and others. From a judgment entered on a directed verdict for defendants, plaintiffs bring error.

<p>Appeal from District Court, Terry County;' W. R. Spencer, Judge.</p> <p>Suit by Wood E. Johnson, Sheriff, against George W. Neill and others, for injunction. From an order granting injunction, defendant’s appeal.</p>

Kennon, Judge. Action by John Hillert and others against Egbert Schweppe, as county attorney, to contest an election. Judgment for defendant, and plaintiffs appeal.

<p>1. Fixtures &wkey;>27(I) — General rules yield to agreement of parties.</p> <p>The general rules of law pertaining to fixtures yield to the provisions of the contract made by the parties.</p> <p>2. Fixtures <&wkey;4 — Elements considered in determining intention of parties stated.</p> <p>The intention of the parties as to whether personalty attached to land constitutes a fixture is' determined from the language of the contract, the circumstances under which the contract was made, and the purpose for which it was made.</p> <p>3. Landlord and tenant <&wkey;l57(5) — Lessee’s failure to remove improvements within required time under lease reserving title in lessee did not divest lessee of title.</p> <p>Provision in a lease that the improvements “shall be and remain the exclusive property ■of the lessee, provided however the same, unless sold or otherwise disposed of, shall be removed by the lessee within 90 days after the premises are vacated,” was not a provision for forfeiture on failure to remove, but a covenant to remove, so that failure to remove within the time limited merely precluded lessee from entering to remove without being liable for damages.</p> <p>4. Landlord and tenant <&wkey;157(4) — Improvements made by lessee under agreement that they are to remain his property regarded as personalty.</p> <p>Improvements placed on land by lessee under agreement that they are to remain lessee’s property are to be regarded as personalty.</p> <p>5. Landlord and tenant <S=»I57(5)— Equity will relieve against condition subsequent to vesting of title to the improvements in lessee requiring removal within stipulated time where delay is not wififul. .</p> <p>Where lease reserved in lessee title to improvements placed by him on the land contained, conditioned on removal within stipulated time after termination of lease, equity will relieve against the condition, where delay in removal of improvements was not willful, the general rule of equity being that time is not of the essence of the contract.</p> <p>6. Landlord and tenant &wkey;>l57(5) — Forfeitures not favored.</p> <p>Forfeitures are not favored by the law, and, if the language of the contract is fairly susceptible of an interpretation which will prevent a forfeiture, it will be so construed.</p> <p>7. Injunction <&wkey;H8(l) — Pleadings held to raise issue as to estoppel of landowner to claim forfeiture of improvements for failure to remove improvements from land within time specified in lease.</p> <p>In action by the plaintiffs who claimed ownership of improvements of land under lessee, who had reserved title thereto, to enjoin defendant owner of land from destroying, removing, or appropriating improvements, allegations that defendant’s repeated negotiations with plaintiffs for purchase of improvements caused plaintiffs to materially delay removal of improvements, and that plaintiffs, but for such conduct, would have removed improvements within specified time, held to raise issue of es-toppel of defendant to claim improvements by forfeiture, for plaintiffs’ failure to remove them within required time.</p> <p>8. Appeal and error <&wkey;742(l) — Proposition not followed by statement not considered.</p> <p>Proposition under assignment of error not followed by any statement cannot be considered.</p> <p>9. Appeal and error <&wkey;742(l) — Assignment of error not followed by proposition or statement cannot be considered.</p> <p>Assignment of error not followed by any proposition or statement, but merely containing the words “See statements and authorities hereinbefore,” cannot be considered.</p> <p>Walker, J., dissenting.</p>

<p>Appeal from District Court, Tarrant County; George E. Hosey, Judge.</p> <p>L. C. Perkins was convicted of robbery with firearms, and he appeals.</p>

<p>1. Appeal and error <§=3500(2) — Record must show ruling on exceptions to petition.</p> <p>Assignments charging error in overruling exceptions to the plaintiff’s petition cannot be considered, where the record does not affirmatively show that the exceptions were acted upon and there are no bills of exceptions.</p> <p>2. Carriers <§=3227(0 — Petition complaining of muddy loading pens not subject to general demurrer.</p> <p>A shipper’s petition in action against carrier held not subject to general demurrer, where, although not in specific words charging that defendant was guilty of actionable negligence, it set up the facts that the loading pens where so muddy as not to be proper for loading of cattle, etc., under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6654, and, although it did not specifically set up the true measure of damages, charged that the cattle were deteriorated in value in a definite sum on account of being covered with mud when loaded.</p> <p>3. Appeal and error <§=3 197(5) — Variance must be taken advantage of in lower court.</p> <p>In shipper’s action against carrier for damages to his cattle because of muddy loading pens, the objection that the shipper had not pleaded that the pens were not such as an ordinarily prudent person would have furnished under the circumstances, or different from those ordinarily furnished, could not be sustained, in the absence of a special exception properly presented to the trial court, and any erroneous ruling excepted to and properly brought up for review.</p> <p>4. Carriers <§¡=3228(5) — Evidence held not to show damages from mud in loading pens.</p> <p>In shipper's suit against carrier for damage to cattle by being caked with mud from muddy loading pens evidence held insufficient to show deterioration in value of the cattle from the cause complained of, and therefore is not sufficient to support judgment for plaintiff.</p> <p>5. Appeal and error <§=3230 — Objection to charge on weight of evidence waived by failure to properly object.</p> <p>The objection that the charge as a whole is on the weight of evidence is waived where this specific objection to the charge is not made in the trial court by being presented in writing before reading of the general charge,' as requiréd by statute.</p>

<p>Appeal from District Court, Yal Verde County; Joseph Jones, Judge.</p> <p>Action by Raney & Hamon against Hamilton & White. Judgment for defendants, and plaintiffs appeal.</p>

<p>Error from District Court, Midland County; W. P. Leslie, Judge.</p> <p>Action by Robert Currie against the Liverpool & London & Globe Insurance Company, Limited. From judgment for plaintiff, defendant brings error.</p>

<p>Appeal from District Court, Nueces County.</p> <p>On motion for rehearing.</p>

T. Sluder, Judge. Suit by the Temple Hill Development Company against Eric Lindholm and wife. There was a decree for defendants, and plaintiff appealed to the Court of Civil Appeals, which affirmed the judgment (212 S. W. 984), and plaintiff further proceeded in error to the Supreme Court (231 S. W. 321), which reversed and remanded the case to the Court of Civil Appeal to pass upon the sufficiency of the facts.

<p>Appeal from Bexar County Court; John H. Clark, Judge.</p> <p>Action by the Peacock Military College against C. E. Shults. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial <&wkey;>l42 — Directed verdict improper where contradictory conclusions could be drawn from evidence.</p> <p>A court commits error to direct a verdict, where contradictory conclusions might be drawn from the evidence, whatever conclusion it may establish in the mind of the judge.</p> <p>2. Deeds <®=»78—Whether signatures of grantors obtained by fraud held for jury.</p> <p>In trespass to try title, the issue whether signatures to the deed under which plaintiff claimed were obtained by fraud practiced on the grantors held for the jury.</p> <p>3. Acknowledgment <5=62(2)—Whether grantors appeared before notary held for jury.</p> <p>In trespass to try title, whether the grantors in deed to plaintiff appeared before a notary public for the purpose of giving their acknowledgment to which the notary’s certificate was attached held for the jury.</p> <p>4. Mortgages <&wkey;39 — Deed or mortgage held for jury..</p> <p>In trespass to try title, whether deed under which plaintiff claimed was a deed or mortgage, as respects the claim that it was invalid as a mortgage of a homestead, iheld for the jury.</p>

<p>Appeal from Dallas County Court at Daw; W. N. Coombs, Judge.</p> <p>Action by Payne & Tippin against the W. E. Stewart Land Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.</p> <p>Lee Johnson was convicted of robbery, and appeals.</p>

<p>Criminal law <@=>1208(9)— Sentence erroneous in failing to take account of Indeterminate Sentence Law.</p> <p>A sentence on conviction of robbery fixing confinement in the penitentiary for a period of 25 years was wrong' in failing to take account of the Indeterminate Sentence Law, and will be amended to read, “for a period of not less than 5 nor more than 25 years.”</p>

<p>Venue &wkey;^7 — Sales contract held performable in county in which shipment was received, permitting suit there.</p> <p>Where oats were sold to plaintiff, domiciled in G. county, by defendant, of N: county, shipment recéived in G. county, “to shipper’s order, notify [plaintiff] at S., Texas,” and defendant drew draft on plaintiff for the price, and to it attached order bill of lading, and the draft was paid by plaintiff, on which bill was delivered to it and presented to the railroad company, whereon the oats were delivered to plaintiff, the1 transaction constituted a contract performable in the county in which the shipment was received, permitting suit there within the exception contained in Rev. St. art. 1830, subd. 5.</p>

<p>1. Witnesses &wkey;>302— Court’s question to witness, “Do"you claim your protection?” held not ground for reversal.</p> <p>Court’s question to witness, “Do you claim your protection?” in response to statement by witness that he had been arrested, held not ground for reversal as against contention that court should not have warned witness that he was not compelled to give incriminating testimony.</p> <p>2. Witnesses &wkey;>297 — Refusal to require witness to answer question as to whether he would have shot unarmed man held not error.</p> <p>Refusal to require witness to answer question, “Would you shoot an unarmed man except in the exercise of the right of self-defense or under other lawful justification?” held not error.</p> <p>3. Witnesses &wkey;>308 — Good faith in refusing to answer question for fear testimony might incriminate him may be inquired into.</p> <p>The good faith of a refusal to answer questions because witness fears answers would tend to incriminate him may properly be inquired into.</p> <p>4. Insurance <&wkey;826(2) — Charge on whether deceased met death while making assault held proper.</p> <p>In action for death benefit, the defense being that deceased met his death in making an assault, court’s charge held, to properly submit such.defense when considered as a whole.</p> <p>5. Trial <&wkey;260(l) — Refusal of requested charge covered by general charge not error.</p> <p>Refusal of requested charge covered by the court’s general charge held not error.</p> <p>6. Insurance <&wkey;825(3) — Whether deceased died while making assault held for the jury.</p> <p>In action for death benefit, the defense being that deceased died while making an assault in violation of provision invalidating certificate in the event of death caused by the violation or attempted violation of law, whether deceased was shot while making such assault held for the jury.</p>

<p>1. Venue &wkey;>79 — Pleadings not lawfully filed, in court to which case had been transferred before record has been filed therein.</p> <p>Plaintiff’s dismissal of case in court to which it had been transferred after record of case had been filed therein and before defendants had filed answer and cross-action subsequent to the filing of the record theld proper, though defendants had filed answer and cross-action before the clerk had filed the record of the case; such answer and cross-action not having been lawfully filed. ' •</p> <p>2. Appeal and error &wkey;>695(l) — Bill of exceptions, not purporting to be a full statement of facts, not considered as such.</p> <p>Bill of exceptions approved as such by the court containing evidence of witnesses in narrative form, but not purporting to be a full statement of facts, cannot be considered as a statement of- facts to show fact contrary to court’s finding of fact.</p> <p>3. Dismissal and nonsuit <&wkey;43(2) — Court cannot reinstate cause after order of dismissal had been entered in vacation before filing of answer.</p> <p>Order of dismissal having been entered in vacation, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1898, before an answer had been filed, the court had no authority to reinstate on motion therefor.</p> <p>4. Appeal and error <&wkey;>694(l) — Trial court’s finding conclusive on appeal, in absence of statement of facts.</p> <p>Trial court’s finding of fact is conclusive on appeal, in absence of statement of facts.</p>

<p>!. Customs and usages <®=I5(2) — Evidence of custom as to meaning of term “saw timber” held admissible.</p> <p>In an action on a contract for the sale of hard wood saw timber, evidence of custom as to what was generally understood in the locality by men engaged in the same business by the term “saw timber” held admissible.</p> <p>2. Customs and usages <§=>13, 17 — Valid usages or customs incorporated by implication.</p> <p>A valid usage or custom concerning the subject-matter of a contract, knowledge of which may be charged to the parties, is incorporated into the contract by implication, and in the absence of a different meaning expressed therein proof of such custom or usage is permitted to interpret the contract, but not to vary it.</p> <p>3. Pleading <©=ll — Meaning of term in contract not required to be pleaded.</p> <p>In an action on a contract for the sale of hard wood “saw timber,” the question of what constituted “saw timber” was a mere question of evidence which plaintiff was not required to plead.</p> <p>4. Evidence <©=576 — Reproduction of evidence at. former trial of witness, subsequently insane, proper.</p> <p>Where a witness had become insane since a former trial, reproduction of his evidence therein by the introduction of the stenographic report held proper.</p> <p>5. Depositions <§=94 — Improper answer in deposition may be excluded.</p> <p>Where an answer to a question contained in a deposition is improper, it may properly be excluded on objection, just as the court may exclude the ans-wer of a witness personally testifying.</p> <p>6. Evidence <©=129(5) — Evidence as to breach of prior contract held irrelevant.</p> <p>In an action on a contract for the sale of timber, wherein defendant also gave employment to plaintiff, evidence of a breach by plaintiff of a contract of employment existing between the parties previously to that sued on held irrelevant and immaterial.</p>

<p>Appeal from District Court, Jim Wells County; Hood Boone, Judge.</p> <p>Suit by John Dunn against Juan Benavides. Judgment for plaintiff, and defendant appeals.</p>

Gibbs, Judge. Suit by the First National Bank of Pecos against Max Ritz, wherein a writ of attachment was levied upon land, which defendant’s wife, in a cross-action joined by her husband, claimed to be homestead. Judgment for plaintiff, and defendants appeal.

<p>Criminal law <@=»I097(5) — Special charges and questions raised in motion for new trial not reviewable in absence of statement of facts.</p> <p>Questions raised by special charges which were refused, and in the motion for new trial, cannot be reviewed in the absence of a statement of facts.</p>

<p>1. Master and servant <§=>388 — “Dependent” parents within Compensation Act defined.</p> <p>In order to be a “dependent” parent within the Workmen’s Compensation Act, it is not necessary for an old and crippled parent to exhaust all the resources of his life’s work and face a dependent old age.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Hirst and Second Series, Dependent.]</p> <p>2. Master and servant <©=>417(5) — Dependency within Compensation Act held for jury.</p> <p>Whether parents worth about §12,000 were dependents of unmarried son under Workmen’s Compensation Act held for the jury.</p> <p>3. Master and servant <©=3417(5)— Charge on burden of proof as to' dependency within Compensation Act held proper.</p> <p>In proceeding by parents under Workmen’s Compensation Act, an instruction that the burden of proof was on them to show by a preponderance of evidence that they were dependent wholly or in part on the labor of their deceased son held to clearly place the burden of proof on them to establish their case by a preponderance of the evidence.</p> <p>4. Master and servant <©=3417(5) — Charge held not erroneous in failing to define “dependent” within Compensation Act.</p> <p>In a proceeding by parents under the Workmen’s Compensation Act to obtain compensation for death of a. son, court did not err in failing to define “dependent” as used in a special issue submitting the question whether they were taking into consideration their conditions and circumstances, dependent wholly or in part on his labor for support.</p> <p>5. Master and servant <§=405 (6) — Evidence of average daiiy wage as basis of compensation held sufficient.</p> <p>In a proceeding to obtain compensation for death of son under the Workmen’s Compensation Act, testimony that the deceased at the time of his death was receiving §2.50 per day as daily wages was sufficient evidence upon which to base a finding that §2.50 was the average daily wages of the employés of the same class, there being no suggestion in the record that deceased was a favorite of the employer.</p> <p>6. Master and servant <§=4I7(5)— Charge held not erroneous as assuming compensation claimant’s deceased son worked for year.</p> <p>A special issue in a compensation case “What was the average daily wage which was earned by the employés of the same class as deceased, working substantially the whole of the preceding year at the same or neighboring place,” etc., held' not subject to the criticism that it assumed and advised the jury that deceased had worked for defendant employer substantially the whole of the preceding year.</p> <p>7. Master and servant <§=417 (5) — Charge as to computation of average daily wage in compensation case held proper.</p> <p>In proceeding to obtain compensation under the Workmen’s Compensation Act for death of son, court did not err in charging the jury that, in case they were unable to ascertain average daily wages of deceased, they could compute it in any maimer that might seem just and fair to the parties, in view of part 4, § 1, subd. 3, of the Act.</p> <p>8. Master and servant <§=4I7(5) — Error in attorney’s argument in compensation case cured by charge.</p> <p>If it was error for attorney to tell jury in proceeding under the Workmen’s Compensation Act “that, under the Compensation Daw, where a person was killed, that his dependents were entitled to recover compensation for his death,” it was cured by a subsequent instruction to disregard such argument.</p> <p>9. Master and servant <§=404 — Crimina! record of deceased son of compensation claimants properly excluded.</p> <p>In proceeding to obtain compensation for death of son, where dependency was at issue, criminal record of deceased was properly ex-eluded from the jury where it was introduced to show that parents had paid fines and attorney’s fees.</p> <p>10. Master and servant <@=5418(5) — Exclusion of evidence in compensation case held not prejudicial.</p> <p>In proceeding to obtain compensation for death of son, insurer, appealing from a judgment sustaining the award, cannot complain of exclusion of evidence that claimants received $2,000 insurance after the death of their son, in the absence of a showing that this testimony was the only testimony offered raising the issue that dependency had ceased, and there being no request to submit such an issue to the jury.</p> <p>11. Master and servant <@=>417(9) — Judgment providing for execution for weekly compensation held proper.</p> <p>The district court sustaining an award for compensation for death of servant did not err in providing in the judgment for issuance of execution upon the weekly installments of compensation provided for therein.</p> <p>12. Master and servant <@=>417(5) — Permitting jury to compute average weekly wage in compensation case held not error.</p> <p>In proceeding under Workmen’s Compensation Act, the district court did not err in permitting jury to compute the average weekly wage of the deceased servant where it made the finding of the jury its own by incorporating it in the judgment, assuming that the determination of the weekly wage is only an administrative act.</p>

<p>1. Chattel mortgages <&wkey;281 — Property held not shown to be deteriorating so as to warrant appointment of receiver.</p> <p>In an action based on chattel mortgage for appointment of receiver, plaintiff held to have failed to show by testimony that property covered by mortgage had been unusually abused or injured, or that it had unnecessarily deteriorated in value so as to warrant the appointment of a receiver for the purpose of preserving it.</p> <p>2. Evidence <&wkey;48-~Comnion knowledge that fish and produce are perishable.</p> <p>It is a matter of common knowledge that fish and produce are peculiarly perishable, and that sales thereof must be made quickly, if at all, and that to keep them in stock beyond a few days would destroy their value.</p> <p>3. Receivers &wkey;>!3 — Fraudulent obtaining or business condoned by seller.</p> <p>Assuming that one obtained a stock of goods and fixtures by fraud in representing that he had on hand money with which to pay the price of the stock when invoice was completed, such fraud relied on as giving the seller the right to have a receiver appointed for the buyer’s business, was condoned and waived by seller’s own conduct in voluntarily abandoning the rights he had under the agreement by extending the time of payment.</p> <p>4. Chattel mortgages <&wkey;28l — When mortgagee is entitled to receiver.</p> <p>To entitle a mortgagee to invoke the extraordinary powers of a court of equity and obtain appointment of a receiver, he must clearly show by evidence that the property is being materially wasted or unnecessarily injured in value, or was in fact fraudulently procured from him.</p>

<p>'Appeal from Hamilton County Court; J. C. Shipman, Judge.</p> <p>Suit by W. W. Oates against H. M. Wieser. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Evidence <&wkey;IO(2)— Judicial notice of town’s location in arid district.</p> <p>That Barstow* is located in an arid district, where irrigation is necessary, is a fact of which the court takes judicial notice.</p> <p>2. Action <&wkey;50( 10) — Joinder of company and individual in suit to restrain interference with irrigation ditch held proper.</p> <p>There was no misjoinder of parties and causes in a suit by a company" and an individual to enjoin defendants from interfering with plaintiffs’ right to keep an irrigation ditch clear; the individual claiming a water right, through a contract with said company, and both claiming the right to maintain and use the ditch by limitation.</p> <p>3. Nuisance <&wkey;30 — Irrigation ditch users necessary parties to cross-action to abate it.</p> <p>In a eross-action to abate an irrigation ditch as a nuisance, all parties using and claiming a right to the ditch are necessary parties.</p> <p>4. Evidence <&wkey;>472(9) — Testimony that ditch constitutes a nuisance inadmissible as conclusion.</p> <p>Admission of testimony that a ditch in front of C.’s home constituted a nuisance was error, as invading the province of both court and jury, as the jury finds the facts and court decides whether they constitute a nuisance.</p> <p>5. Nuisance ¡&wkey;37 — Issue as to removal of irrigation ditch complained of as nuisance held immaterial.</p> <p>In a suit to enjoin defendants from interfering with plaintiffs’ irrigation ditch in front of defendants’ home, with a cross-action to abate the ditch as a nuisance, an issue as to whether water could otherwise be conveyed to plaintiffs’ land was immaterial, where another distributing ditch, if built, would run in front of a third person’s home and transfer the inconvenience to him.</p> <p>g. Nuisance <&wkey;>33 — Evidence as to size of other irrigation ditch held inadmissible.</p> <p>In a suit to restrain defendants from interfering with plaintiffs’ right to keep an irrigation ditch in front of defendants’ home dear and unobstructed, with cross-action for abatement of the ditch as a nuisance, evidence that other ditches were maintained as large as defendants’ was properly excluded.</p> <p>7. Nuisance &wkey;>33 — Evidence held to show irrigation ditch constituted a nuisance.</p> <p>In a suit to restrain defendants from interfering with plaintiffs in keeping an irrigation ditch in front of defendants’ home clear and unobstructed, with cross-action for abatement of the ditch as a nuisance, evidence held sufficient to show that the irrigation ditch, as maintained, constituted a nuisance.</p> <p>8. Nuisance <&wkey;25(I) — Increase in property value no justification.</p> <p>In a suit to restrain defendants from interfering with plaintiffs in keeping an irrigation ditch in front of defendants’ home clear and unobstructed, with cross-action to abate the ditch as a nuisance, it is immaterial that defendants’ property had increased in value since they bought it.</p>

E. Singleton, Judge. Trespass to try title by William Green against Geraldine Humphreys and another in which D. D. Green, as only child and sole devisee of William Green, was substituted as plaintiff after the death of the original plaintiff. Judgment for the plaintiff on directed verdict, and defendants appeal.

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Action by Chai-Ies A. Weathered against the Milwaukee Mechanics’ Insurance Company. From judgment for plaintiff, defendant appeals.</p>

Bishop, Judge. Suit by Bessie S. Hannaman against Sam Morris, John J. Gordon, and others, to recover the amount of a note and foreclose a trust deed securing it. Judgment for the plaintiff, and defendant John J. Gordon appeals.

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action by N. M. Poon against J. F. Miller and wife. Judgment for defendants on directed verdict, and plaintiff appeals.</p>

Suit for injunction by Cluck & Murphy against the City of Dallas and others. Judgment for plaintiffs, and the named defendant appeals.

<p>Appeal from District Court, Dallas County.</p> <p>Action by the Creosoted Wood Block Paving Company against A. C. McKay and others. Erom jhdgment giving it insufficient relief, plaintiff appeals. On defendants’ motion to dismiss, appeal.</p>

B. Muse, Judge. Suit by H. M. Pavey and another against S. J. McFarland and another. From an order declining to grant a temporary injunction, plaintiffs appeal.

<p>1. Railroads <&wkey;2l6 — Spur track agreement held not terminable at railroad’s will.</p> <p>Spur track agreement with fuel company, fixing no period of time during which the switch or spur track was to be maintained, held to obligate the railway company to permanently operate the switch, with no right to discontinue its operation unless the public interest so required.</p> <p>2. Assignments &wkey;>20 — Spur track agreement held assignable.</p> <p>Agreement to construct and operate a spur track by a railroad company and a shipper, containing no provision as to assignability, was assignable under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 583.</p> <p>3. Railroads &wkey;>216 — Petition held sufficiently to allege loss from breach of spur track agreement.</p> <p>In action for damages from change of spur track in violation of agreement, petition held sufficiently to allege damages from increase of expenses and loss of business. - •</p> <p>4. Railroads <&wkey;2l6 — Damages from loss of profits held contemplated by parties to spur track agreement.</p> <p>Spur track agreement with fuel company, reciting that the fuel company was conducting a general fuel business, and had purchased a tract adjacent to the railroad’s right of way, etc., held to show that the parties contemplated that loss of profits to the fuel company would naturally result from the railroad’s breach of the agreement.</p> <p>5. Assignments &wkey;3137 — Evidence held to show assignment of spur track agreement.</p> <p>In fuel company’s action against railroad for change of spur track contrary to spur track agreement, evidence held to show assignment of the contract from plaintiff’s predecessor to plaintiff, and that the railroad had notice thereof.</p> <p>6. Railroads <®=»216 — •Evidence held to warrant submission of issue of loss of profits from change of spur track.</p> <p>In fuel company’s action for damages from change of spur track, evidence held to warrant submission of issue of lost profits.</p> <p>7. Damages <&wkey;6 — Certainty required is as to existence, not amount, of damages.</p> <p>The rule that damages which are uncertain or contingent cannot be recovered does not embrace any uncertainty as to the value of the benefit or gain to be derived from the performance of the contract, but only the contingency as to whether such benefit would be derived at all; that is, the rule applies to only such damages as are not the certain result of the breach, and not to such, as are the certain result, but uncertain in amount.</p> <p>8. Evidence &wkey;>460(5) — Railroads <®=»2I6— Testimony by transferor of business that transfer included spur track agreement held proper.</p> <p>In a fuel company’s action against a railroad for change of spur track, contrary to spur track agreement, testimony of plaintiff fuel company’s assignor that when he transferred the fuel business from himself to plaintiff on plaintiff’s incorporation by transfer in terms of “all my right, title, and interest in said business,” such transfer included the spur track agreement, held proper, as against the objection that it was immaterial, or that the transfer contract spoke for itself, or that the contract was one to which the railroad was not a party.</p> <p>9. Railroads &wkey;>2l6 — Testimony as to loss of profits from breach of spur track agreement held not speculative.</p> <p>In fuel company’s action against railroad for change of spur track contrary to spur track agreement, permitting witness to state that the change of the switch made a big difference in plaintiff’s business, and that plaintiff did not solicit business in carload lots of coal after the change because it could not handle it on a profitable basis, held proper, as against objection that the statement was speculative, and that such loss was not within the contemplation of the parties putting in the track.</p> <p>On Motion for Rehearing.</p> <p>10. Railroads <&wkey;>2l6 — Evidence as to necessity of double tracking properly excluded.</p> <p>In fuel company’s action against railroad for change of spur track contrary to spur track agreement, exclusion of evidence by the railroad as to necessity of double tracking at the point where the switch to the spur track was, was not error, there being no issue submitted or requested to be submitted as to danger from running trains against a facing switch, as alleged in the answer.</p> <p>11. Railroads <&wkey;2!6 — Testimony as to loss of profits from breach of spur track agreement h'eld proper.</p> <p>In fuel company’s action against railroad for change of spur track contrary to spur track agreement, it was not improper to permit a witness for plaintiff to say that it was not profitable, under the conditions witness found after the track was taken out and under the competition then existing, to handle coal in carload lots with a profit of $1 or $1.15 a ton.</p>

C. Canty, Judge. Action by Charles W. Sloman and others against the Galveston, Houston & Henderson Railroad Company. Judgment for plaintiffs, and defendant appeals. On plaintiffs’ motion to strike out statement of facts.

<p>1. Appeal and error &wkey;>912 — Findings presumed in support of judgment overruling plea of privilege.</p> <p>Facts and circumstances justifying such inference, it must be presumed, on appeal, in support of a judgment overruling a plea of privilege, that trial court found written confirmation was intended by the parties to evidence and express the contract sued on as finally consummated; pdaintfif relying upon Rev. St. art. 1830, subd. 5, authorizing suit to be brought where a person has contracted in writing to perform his obligation.</p> <p>2. Appeal and error <&wkey;1024(3) — Finding of fact binding on appeal.</p> <p>Finding of fact of trial judge on trial of plea of privilege is binding on appeal, where the evidence warrants it.</p> <p>3. Venue <&wkey;7 — For purpose of venue contract in writing need not be signed by both parties.</p> <p>Where all the terms of a contract are in writing, the failure of one of the parties to sign, where the party not signing accepts a duplicate copy, is not fatal to the instrument as a written contract under Rev. St. art. 1830, subd. 5, which authorizes suit to be brought in county where person has .contracted in writing to perform his obligation.</p>

<p>Appeal from District Court, Walker County; Carl T. Harper, Judge. *</p> <p>Walter O’Bryan was convicted of unlawful manufacture of intoxicating liquors and appeals.</p>

<p>I. Sales <@=72(l) — Contract to sell at specified price “basis middling’’ did' not require delivery of middling cotton.</p> <p>Contract to sell specified number of bales of cotton at specified price “basis middling f. o. b. Tahoka,” hold not to obligate sellers to deliver middling cotton, but merely made middling cotton the basis in ascertaining the price to be paid for other grades, in view of custom to grade and classify cotton at the time of delivery as the basis of settlement.</p> <p>2. Sales <@=151— Seller’s readiness to deliver at time and place sufficient performance on seller’s part if contract requires buyer to receive it at such place.</p> <p>Ordinarily where seller is to deliver articles at a particular place at which buyer is to receive them, or provide vehicles for transportation, or inspect, weigh, or measure them, the seller performs his part of the contract if he is ready to deliver at the time and place, though actual delivery is defeated by buyer’s failure to perform.</p> <p>3. Sales <@=83 — Contract to sell cotton basis middling “f. o. b.” at particular ‘point required buyer to receive and grade cotton at such place at specified time.</p> <p>Where contract provided for sale of specified number of bales of cotton at specified price “basis middling f. o. b. Tahoka, to be delivered any day not later than” specified date, and, where there was a custom requiring buyer of cotton to be graded in order to ascertain amount due to have representative at the time and place of delivery of cotton to grade and classify it,.buyer’s failure to be present in person or by representative at Tahoka on the specified date to receive, classify and grade the cotton, constituted a breach of the contract, since classification of the cotton delivered was necessary to ascertain the price, and since such grading of cotton was to be done at Tahoka, notwithstanding use of term “f. o. b.”; such term not requiring cotton to be loaded on cars in order to make a tender thereof by the seller, but merely indicating that cotton would be placed on car at seller’s expense.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, F. O. B.]</p> <p>4. Customs and usages <@=13 — Parties to contract presumed to contract ini reference to usage or custom prevailing in business to which contract relates.</p> <p>Where there is nothing in the agreement to exclude the inference, the parties'are always presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates, and usage is admissible for the purpose of ascertaining with greater certainty what was intended by the parties.</p> <p>5. Sales <@=54 — Time of essence of contract where market was fluctuating daily.</p> <p>Time held of the essence of a contract to sell cotton at particular price, to be delivered before specified date, in view of evidence that the market was fluctuating daily.</p>

<p>1. Associations <@=o20(l) — When courts will interfere with internal affairs.</p> <p>The courts will not interfere with the internal affairs of an unincorporated association so long as the government of the society is fairly and honestly administered in conformity with its laws and with the law of the land, and no property or civil rights are invaded, but proceedings of an association are subject to judicial review where there is fraud, oppression, or bad faith, or property or civil rights are invaded, or the proceedings in question are violative of the laws of the society or the law of the land, or are illegal.</p> <p>2. Associations <@=»29( I)— Members of association must exhaust remedies before applying to court.</p> <p>If the laws of an association provide tribunals for settlement of questions arising between members, or between members and the association, such tribunals must be appealed to before the question or dispute can be taken into the courts.</p>

<p>Appeal from District Court, Sabine County; J. T. Adams, Judge.</p> <p>Suit by Ida W. Harris and others against A. D. Hamilton and others. Judgment for the defendants, and plaintiffs appeal.</p>

Error from District Court, Bexar County; J. T. Sluder, Judge. Suit by the Most Worshipful King Solomon Grand Lodge and another against C. L. Mitchell and others. Judgment that plaintiff take nothing, and that the election of N. N. Boozier and others as officers of the plaintiff organization was illegal, and Boozier brings error.

<p>Appeal from Ward County Court; Geo. H. Tucker, Judge.</p> <p>Suit by Kenneth Slack against George I. Stark, Ivy Stark, and others. Judgment for plaintiff against named defendants, and first named defendant appeals.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Suit by Albert Guerra against the Union. Painless Dentists and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Frio County; Covey C. Thomas, Judge.</p> <p>Action by Thomas W. Smith against Arthur Dawson. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Landlord and tenant <®=323l(7) — Evidence held to sustain finding that pasture contained land leased.</p> <p>In an action for rent, where defendant counterclaimed on ground of a shortage in-acreage, an assignment that the court erred in finding that the leased premises contained approximately the amount specified in the lease held without merit, in view of the fact that the land was capable of exact ascertainment and defendant did not introduce satisfactory proof thereof.</p> <p>2. Landlord and tenant <S=> 127 — Lessee entitled to immediate possession .in absence of other showing.</p> <p>Under a lease of pasture lands making no-provision concerning the removal of 1,000-cattle belonging to the lessor, lessee was entitled to the possession, use, and enjoyment of the entire premises from the date of the lease, in the absence of allegation and proof showing otherwise.</p> <p>3..Landlord and tenant <®=>231 (6)— Evidence held not to sustain finding as to acreage in feed crops.</p> <p>In an action to recover rentals under a lease of pasture lands, court’s finding as to total acreage in feed crops held not supported by the evidence.</p> <p>4. Landlord and tenant <§=>211(1) — Rule as to shortage in land leased.</p> <p>One leasing pasture lands of “about 14,700 acres” should be relieved of payment of part of rental if through mutual mistake there was a great disparity as to the acreage.</p>

<p>Appeal from District Court, Besar County; S. G. Tayloe, Judge.</p> <p>Action by Miguel Ochoa against Henry A. Rogers. Judgment for plaintiff in an amount less than petitioned for, and he appeals.</p>

R. Price, Judge. Action by Ira O. Charles, Jr., against the El Paso Electric Company and others. Judgment for defendants entered on directed verdict, and plaintiff appeals.

R. Chapman, Judge. Petition by A. L. Poy for a writ of mandamus against W. C. Martin,. County Judge, and others. Prom a judgment granting the writ, defendants appeal.

<p>I.Appeal and error <&wkey;758(3) — Assignments of error complaining of finding that attorney was defendant’s attorney held not properly briefed.</p> <p>Assignments of error, complaining of the overruling of a motion for a new trial on the ground that the court improperly found that an attorney appearing and asking that the case be reset for a further day because of the absence of another attorney was defendant’s attorney, was not properly briefed and presented, where it consisted simply of the sworn statement of the attorneys setting up facts as they conceived them in contradiction of the recitals of the judgment, and did not purport to point out the particular error committed or wherein the rendition of the judgment was error.</p> <p>2. Sales @=362 — Contract of sale held not entire but several when price of each machine determinable.</p> <p>A contract, whereby defendant appointed plaintiff its exclusive agent for the sale of certain machines, and sold plaintiff a specified number of the machines at a specified price for each machine and agreed to fill all carload orders, was not entire but several; the amount paid for each machine being determinable.</p> <p>3. Sales &wkey;>442(l6) — Plaintiff not entitled to recover price paid under warranty where machines not worthless.</p> <p>In an action for breach of warranty of belt attachments for running machinery by automobile power, plaintiff was not entitled to judgment for the price paid while still retaining the attachments, though it claimed that they were absolutely worthless to it, where it appeared that they would be of value to any one having machinery that could be driven thereby.</p> <p>4. Sales <&wkey;425 — Remedy after title has passed is on warranty for difference in value.</p> <p>Where title has passed and a warranty goes to the quality or degree of fitness and there is no fraud or agreement to return, rescission cannot be had, but the action is on the warranty for the difference in value of the thing as delivered and as it should be delivered, with such special damages as may be shown.</p> <p>5. Sales &wkey;>442(2) — Price paid not recoverable on warranty.</p> <p>Under a general warranty or implied warranty of machinery, the buyer cannot recover the price paid, but only the difference between the value as delivered and as it should be delivered.</p> <p>6.'Sales <&wkey;>442(l6) — Buyer retaining goods cannot recover price unless goods worthless.</p> <p>A buyer cannot affirm the contract by keeping the machine purchased and recover the price paid, unless it alleges and proves that the machine was worthless.</p> <p>7. Sales <&wkey;44l (4) — No recovery on warranty where evidence does not show difference in value.</p> <p>In an action for breach of warranty of machinery, the evidence was insufficient upon which to predicate a judgment, where it did not show .the difference between the value of the machines delivered and those called for by the warranty.</p> <p>8. Sales <&wkey;267 — Express warranty excludes implied warranty.</p> <p>An express warranty ordinarily excludes an implied warranty, since the seller has a right to define his liability and provide for the measure of damages or the manner of fulfilling the warranty.</p> <p>9. Sales &wkey;>279 — Under warranty buyer not entitled to recover for machines not sold or profits on resale.</p> <p>Under a contract of sale of machines to a dealer for resale, providing that the seller agreed to refund the purchase price in full for any defective machine sold in the dealer’s territory, the dealer could not recover for breach of warranty on account of machines which had not been sold by it, nor could it recover the profits on machines sold by it.</p>

<p>Appeal from District Court, Bexar County; W. S. Anderson, Judge.</p> <p>Action by the Great Southern Life Insurance Company against the Clifton George Company. From an order granting a temporary injunction, defendant appeals.</p>

<p>Appeal from Ochiltree County Court; J. M. Grigsby, Judge.</p> <p>Action by James H. Whippo against Jesse Cudd. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Martin County Court; A. G. Odom, Judge.</p> <p>Action by Brick P. Eidson agáinst J. L. Lancaster and others, receivers of the Texas & Pacific Railway Company. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by H. T. Fowler, doing business as the Fowler Commission Company, against Charles Land, doing business as Charles Land & Co. Judgment for defendant, and plaintiff appeals.</p>

<p>Insurance <&wkey;435 — .Indemnity bond given for specified jitney route covers that route only.</p> <p>Under casualty bond, required by ordinance, covering an automobile in jitney service on a certain specified city route, there was no liability for death caused by the automobile two blocks away from and off the specified route, while the automobile was not being operated in the jitney service; the provisions of the ordinance, license, and bond authorizing the use of the automobile on the specified route constituting a limitation on the promise to pay.</p>

Action by the A. G. MeAdam’s Dumber Company and others against D. B. Wright and others. Judgment for plaintiffs was reformed and affirmed by the Court of Civil Appeals (218 S. W. 571), ■ and defendants bring error.

Trespass to try title by Anna Dittman against W, D. Cornelius and others. Judgment denying plaintiff relief, save as to lands as to which defendants disclaimed, was affirmed by the Court of Civil Appeals (218 S. W. 109), and plaintiff brings error.

Suit by J. W. Davidson and others against the Guarantee Life Insurance Company and another. Judgment for defendants on demurrer to the petition was reversed by the Circuit Court of Appeals (220 8. W. 582), and defendant Guarantee Life Insurance Company brings error.

<p>Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.</p> <p>Howard Schuler was convicted of theft, and appeals.</p>

<p>Criminal law &wkey;>l08l — Absence of notice of appeal defeats jurisdiction.</p> <p>The absence of notice of appeal prevents the jurisdiction of the Criminal Court of Appeals from attaching, and requires dismissal of the appeal.</p>

<p>Appeal from Eastland County Conrt; J. H. .Tones, Judge.</p> <p>Action by H. L. Gibson against tlie Gulf Production Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Injunction &wkey;>l35 — Denial of temporary injunction held within trial court’s discretion.</p> <p>The denial of a temporary injunction to restrain the execution of a sheriff’s deed, where no attack was made on the judgment, but it was contended 'the price was inadequate, and the answers under oath showed the property sold for its full value, which was insufficient to pay the debt, was within the discretion of the trial court.</p> <p>2. Husband and wife.<S&wkey;272(3) — Incompetent wife has no interest subject to administration in community property during husband’s lifetime.</p> <p>Since a husband has full control over the community estate during his lifetime, a wife, who' is mentally incompetent, has no interest in such property, while her husband is living, which, is subject to administration in the probate court.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>Dick Harper was convicted of theft of property of the value of more than $50, and he appeals.</p>

<p>Appeal from District Court, McLennan County; Richard- I. Munroe, Judge., - • ■ -</p> <p>R. H. Storms was convicted of felony theft, and he appeals.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>Earnest Carter was convicted of felony theft, and he appeals.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>M. C. Cassady was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, McLennon County; Richard I. Munroe, Judge.</p> <p>M. C. Cassady was convicted of theft of an automobile, and he appeals.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>George Gipson was convicted of murder, and he appeals.</p>

<p>Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.</p> <p>Action by H. L. Coleman against J. O. Dove. Judgment for plaintiff, and defendant appeals.</p>

B. Harvey, Judge. Action by Manuela Diaz in her own behalf, and as next friend for her minor children, against the Texas & New Orleans Railroad Company. Judgment for the plaintiffs, and defendant appeals.

<p>1. Appeal and error <&wkey;39l (1) — Motion to dismiss overruled on tender of proper bond.</p> <p>A motion to dismiss appeal on account- of the insufficiency of the appeal bond will be overruled, where appellant tenders bond which meets the objections made.</p> <p>2. Landlord and tenant <&wkey;-323 — Relation held to exist; “rent.”</p> <p>Where owner “rented” land and agreed to furnish the tools, teams and necessary feed therefor, and another was to furnish only the labor to make the crop for that year, and was to have one-half the crop and pay for food and rations furnished him, the relation was that’of landlord and tenant, and they were not joint tenants or tenants in common in the crop raised, the word “rent” meaning compensation which owner of land receives for the use by another, and the verb “rent” meaning “to let out; to lease; as to rent one’s house.”</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Rent.]</p>

<p>Appeal from Smith County Court; D. R. Pendleton, Judge.</p> <p>Action by Hill & Senter against R. L. Wick-liffe and another in justice’s court. From a judgment against defendant named, he appealed to the county court, where his plea of privilege was sustained, and plaintiffs appeal.</p>

<p>Appeal from Gregg County Court; W. A. Ray, Special Judge.</p> <p>Suit by the Campbell Company against H. H. Watson. From judgment giving it insufficient relief, the plaintiff appeals.</p> <p>The suit is by the appellant for damages arising from the breach of an express contract whereby the appellant, a corporation with domicile in Little Rock, Ark., agreed to sell to the appellee, residing in Longview, Tex., a certain quantity of prime loose cotton seed hulls. By the terms of the contract the appellant was to make “immediate shipment” of two carloads of the hulls, and to make “shipment or shipments during April, 1919,” of 200 tons of hulls. The appellee was to pay $13 per ton f. o. b. cars Texas common points. The contract was made about the 19th day of March, 1919.</p> <p>The appellee answered by general denial, and specially denied under oath the execution of the alleged written contract, and pleaded a cancellation by agreement of the contract that was entered into; and by cross-action sought to recover $36.38 by reason of alleged shortage in weight of the two cars of hulls shipped to him.</p> <p>The court entered a judgment for the appellant for $200, and against the appellee on his cross-action.</p> <p>The evidence conclusively establishes that appellant made, as agreed, the shipment of !he “two carloads” of cotton seed hulls, and did not make “shipment during April, 1919,” of the “200 tons” of hulls. The failure, though, of appellant to make “shipment during April, 1919,” was due, it is shown, solely to the failure of the appellee to give, as he was required by the contract to do, “shipping instructions” to the appellant. The appellant made several seasonable requests of the ap-pellee to furnish the shipping instructions. 'Che appellee failed or neglected to give any shipping instructions during the month of April, and breached the terms of the contract. Appellant then sold the 200 tons of seed in May, 1919, and demanded of the ap-pellee the payment of the difference between the price the hulls sold for and the price agreed to be paid appellant. The appellee did not make the payment demanded, and later the suit was brought.</p> <p>The evidence fails to establish a cancellation of the contract by agreement of the parties, the appellee having failed to pay or tender payment of the sum of money agreed upon, which was a condition precedent to make the agreement effective. The appellant therefore was entitled to recover of ap-pellee damages by reason of the breach of the contract sued on of March 19, 1919. There is support in the evidence of the court’s judgment for the $200 as damages for breach of the contract.</p> <p>The evidence supports the judgment of the court against the appellee on the claim in his cross-action.</p>

Error from Wood County Court; B. F. Cathey, Judge. Action by A J. Weems, administrator, against the First National Bank of Winns-boro and others. From a judgment against him, plaintiff brings error.

M. Marshall, Judge. Action by Affie A. Middlebrook against the Texas & New Orleans Railroad Company and others. Judgment for plaintiff against named defendant, and named defendant appeals.

M. Marshall, Judge. Action by the S. B. Colt Company against J. P. Wagner for breach of a contract in which defendant brought a cross-action for damages. Plaintiff’s exception to answer was sustained, and the defendant appeals.

<p>Homestead <S=I52 — Value of widow’s right to use of homestead not subtracted from fee-simple value in estimating her distributive value as her part.</p> <p>In partition of real estate of deceased husband as' between widow and surviving children, the homestead should be set aside to the widow at its full fee-simple value as a portion of her interest in the common property, without deducting from such value a sum representing the value of her right to the use and occupancy of the homestead, under Const, art. 16, § 52.</p>

<p>1. Master and servant <S=»203 (I) — Contributory negligence and assumption of risk independent defenses.</p> <p>Though contributory negligence and assumption of risk are independent defenses, they may arise from the same facts, in which case it is the duty of the trial court to submit both issues.</p> <p>2. Master and servant <§=>297(2) — Findings of contributory negligence and assumption of risk not contradictory. ,</p> <p>In an action for injuries to a servant, special findings by the jury that the servant was contributorily negligent and that he assumed the risk are not contradictory.</p> <p>3. Master and servant <§=>297(2) — Findings of negligence and contributory negligence conflict with finding of unavoidable accident.</p> <p>• Special findings by the jury that the master was negligent and the servant contributo-rily negligent are in conflict with another special finding that the servant was injured by an unavoidable accident.</p> <p>4. Master and servant <§=297(2) — Findings of assumption of risk and unavoidable accident contradictory.</p> <p>Special findings by the jury in an action where it was claimed a servant had assumed the risk of a railroad’s negligence in furnishing improper method for dumping cars, that the servant' assumed the risk, and that he was injured by an unavoidable accident, are contradictory.</p> <p>5. New trial <§=>73 — Required by conflicting findings of assumption of risk, negligence, and unavoidable accident.</p> <p>Where special findings by the jury of negligence, contributory negligence, and assumption of risk were contradicted by a special finding of unavoidable accident, there was no finding upon which the trial court could base a judgment, and it should have ordered a new trial.</p> <p>6. Trial <§=>356(7) — Court should send jury back for further deliberations after conflicting findings.</p> <p>Where the- special findings by the jury are so contradictory as to amount in effect to no finding on material issues, it is the court’s duty, under Rev. St. art. 1981, to call the jury’s attention thereto, and send them back for further deliberation.</p>

<p>1. Homestead @=>55 — Rights attach before payment of purchase price.</p> <p>Property became homestead of man and wife residing thereon as soon as conveyed to them, subject only to the superior legal title held by the vendor, although no part of the purchase price was paid, under Const, art. 16, § 50, making invalid any trust deed or other lien upon the homestead except for the purchase money, etc.</p> <p>2. Frauds, statute of @=>63(1) — Homestead not paid for not conveyed by parol agreement that child should have the land if he paid the purchase price.</p> <p>Where married couple purchased land upon which they resided and gave a note for the entire purchase price, they could not convey the land to a child by a parol agreement that the child should have the land if he paid the purchase price.</p> <p>3. Subrogation, @=323(2) — Person paying price entitled to subrogation to lien of vendor.</p> <p>Where child of vendees of property occupied as a homesteád paid off the purchase price under an oral agreement with his parents that he should have the land, he could claim no more than subrogation to the vendor’s lien which he discharged, and in order to show such conventional subrogation he must show that there was an agreement with his parents, either expressed or implied, that the lien should be retained as security for the money paid to the vendor.</p> <p>4. Subrogation @=>23(6) — Wihen one paying purchase-money notes may claim subrogation to Hen.</p> <p>Where husband and wife made oral agreement with child to convey land constituting homestead in consideration of child’s assumption and payment of the purchase-money notes, or made an unenforceable parol sale based upon that consideration, the child may claim subrogation to the lien which he discharges.</p> <p>5. Subrogation @=>33(2) — One subrogated can claim no more than predecessor.</p> <p>Where married couple purchased land and gave note for entire purchase price and used the property as a homestead, but became discouraged and orally told child that he could have the land if he paid the indebtedness, on payment of such indebtedness the child could claim no more than the vendor could assert if he were seeking satisfaction for the purchase money, and if an action by the vendor would be barred by limitations so would an action by the child wherein he sought to be subrogated to the rights of the vendor.</p> <p>6.Frauds, statute of @=>144 — Parol contract of married woman to convey not enforceable on grounds of estoppel in absence of fraud.</p> <p>The enforcement of any parol sale of land is justified only upon the ground of estoppel, not because the title has legally passed, and in order to create an estoppel the transaction must be attended by conditions which make it inequitable for the grantor to reclaim the property, and in a case of a married woman disposing of her homestead rights the ground of estoppel must be sufficient to show fraud upon her part.</p>

<p>1. Railroads <S&wkey;5¡/2> New, vol. 6A Key-No. Series-Intrastate rate limiting liability within federal control.</p> <p>Under Act Cong. Aug. 29, 1916, § 1 (U. S. Comp. St. § 1974a), authorizing the President to take possession of the railroads, and Act March 21, 1918, § 10 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115%j), authorizing the President to initiate rates by filing same with the Interstate Commerce Commission, a rate so filed by a railroad under the government was controlling, and such rate having limited the amount recoverable on baggage to $100, the owner could not recover more on an intrastate shipment by virtue of the state law, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 708.</p> <p>2. Carriers <&wkey;400—Rate filed with Interstate Commerce Commission notice o$ limitation of baggage liability, unless greater value declared by owner.</p> <p>A rate filed with the Interstate Commerce Commission containing a limitation of baggage liability to $100, unless a greater value is declared by the owner and excess charges paid, was notice of such limitation, and governed the amount recoverable in case of loss as against the state statute.</p>

<p>Deeds &wkey;>73—Not invalid because in consideration of marriage, causing dropping of prosecution for seduction.</p> <p>In view of Pen. Code 1911, art. 1449, relative to the effect of marriage on a prosecution for seduction, where, upon the marriage of one convicted of seduction with the girl seduced, he was released and the conviction presumably set aside by the judge, from entirely proper motives, the fact that the girl’s father refused to consent to the marriage unless accused’s father would convey land to the girl did not render the deed invalid, as in consideration of an illegal agreement to stifle the prosecution.</p>

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Action by Bessie B. Barnett against the Eureka Paving Company. Prom a judgment of the Court of Civil Appeals (216 S. W. 903) reversing a judgment in her favor, plaintiff brings error.</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>Action by A. B. Smith against O. Y. McDonald, to which John Q. Sewell, William Spitzer, and Will Lyons were made parties. Judgment for plaintiff against defendant McDonald and for McDonald against impleaded parties was reversed, and the canse was remanded by the Court of Civil Appeals (218 S. W. 599), and Sewell and plaintiff bring error.</p>

<p>1. Railroads <§=400 (5) — Negligence in leaving car with open door extending into street question for jury.</p> <p>Where a railroad company placed on its track a refrigerator car with an open door extending six feet toward an adjacent street, and a passing automobile came in contact with door, causing injuries to a passenger, the act of leaving the.door open was not negligence as a matter of law.</p> <p>2. Trial <®=I94( 17)— Charge' on railroad’s negligence in leaving car door open held erroneous, as invading province of jury.</p> <p>In action against railroad for injuries to occupant of automobile sustained in collision with door of refrigerator car, in which the only negligence charged was that of leaving the door open, special charge instructing the jury that it was the duty of the railroad to exercise ordinary care to prevent the ear, or any portion thereof, from injuring plaintiff, or any pedestrian or vehicle using the portion of the street in which the accident had taken place, and that the failure to exercise care would be negligence, ¡held erroneous, in that it in effect told the jury that the act of leaving the door open constituted negligence.</p>

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Action by the Mechanics’-American National Bank of St. Louis against the New England Equitable Insurance Company and another. Judgment for plaintiff was modified by the Court of Civil Appeals (213 S. W. 685), and plaintiff brings error.</p>

Supreme Judicial District. Trespass to try title by J. B. Stone against Jim Robinson, Jr., and others. A judgment for defendant on directed verdict was affirmed by the Court of Civil Appeals (218 S. W. 5), and plaintiff brings error.

Action by James B. Stubbs against Man1 . hattan Life Insurance .Company. A judgment for plaintiff for part only o^ the amount claimed by him, but allowing Mm penalty for attorney’s fees, was affirmed by the Court of Civil Appeals (216 S. W. 896), and both parties bring error.

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Hervey King was convicted of a violation of the liquor law, and lie appeals.</p>

<p>Appeal from District Court, Bexar County; Robert W. B. Terrell, Judge.</p> <p>Action between George Spark and others and Ed. C. Lasater. From judgment for. the latter, the former appeal.</p>

<p>Appeal from District Court, Robertson County; John Watson, Judge.</p> <p>Action by W. A. Sparks against Jas. A. Baker, as receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Pleading <@=lfl — Court should sustain plea for change where not contested, waived, or abandoned.</p> <p>The effect of filing a plea of privilege is to make prima facie proof of defendant’s right for transfer, and no contest having been filed, and the defendant neither having waived nor ' abandoned the plea, the court should sustain it.</p> <p>2. Pleading <@=111 — Where the only possible valid order must be one changing the venue, a judgment on the merits is void.</p> <p>The effect of filing a plea of privilege is to make prima facie proof of defendant’s right for transfer of case and precludes any other proceedings until its disposal in the statutory manner, and, where not contested, waived, or abandoned, the only valid order would have, been one for transfer, so that the judgment rendered on the merits is void.</p> <p>3. Justices of the peace <@=I35(4) — Void judgment of justice of the peace may be restrained.</p> <p>Where a justice court judgment was void because beyond the power of the justice, whose only valid order could have been one changing the venue, in view of Vernon’s Ann. Civ. St. Supp. 1918, art. 1903, the enforcement of such judgment can be restrained by injunction.</p> <p>4. Justices of the peace <@=I35(4) — Foreign corporation against whom injunction could not be granted and who could not be served held not a necessary party.</p> <p>In a suit tp enjoin the enforcement of a void judgment of a justice of the peace, the judgment creditor in such justice’s judgment is not a necessary party where such creditor is a foreign corporation upon whom service could not be obtained and against whom an injunction could not have issued, sin.ce it would be futile.</p> <p>5. Justices of the peace <@=135(4) — in suit to enjoin a void judgment plaintiff need not allege or prove meritorious defense.</p> <p>In a suit to enjoin the enforcement of a void judgment of a justice of the peace, plaintiff was not required to allege or prove a meritorious defense to the judgment.</p>

Steed, Judge. Suit by the Pittman & Harrison Company against B. F. Robey, doing business under the firm name of B. F. Robey & Co., for damages for breach of contract, in which defendant’s plea of privilege was sustained and the cause transferred from Grayson to Coleman county, and the plaintiff appeals.

<p>1. Husband and wife <@=>I7I(I), 239 — No personal judgment against married woman on note, but against property pledged.</p> <p>No personal judgment can be taken against a married woman on a note signed by herself and husband, but she may pledge her separate property as security therefor. ></p> <p>2. Husband and wife <@=>268(3) — Husband liable on note signed by wife.</p> <p>Where wife gave note as purchase price of a tract of land, and a deed of trust was given on other land forming part of her separate estate, the husband who signed the note with her may not be heard to say that it was without consideration and that he was only a surety and not personally liable.</p> <p>3. Husband and <wife <@=>264 — Land' purchased prima facie community property.</p> <p>Land purchased during marriage relation is prima facie community property.</p> <p>4. Husband and wife <@=>268(I) — Husband bound for community debts.</p> <p>The husband is legally bound for community debts, and that without reference to the form of the obligation, if made by his wife, and clearly so when he joins therein, consents or ratifies the transaction.</p> <p>5. Bills and notes <@=»II2 — Principal and surety <@=>8 — Coverture does not release cosigners or sureties in action on note.</p> <p>Where wife with husband and others signed note given for purchase price of land and pledged her separate estate, the fact of cover-ture, and that she could not be held personally liable on the debt, did not release the other signers of the note from personal liability, and it was not- error to render judgment against the latter personally and against the property of the wife in rem, even though those signing with the wife signed only as sureties.</p>

<p>Error from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>On rehearing. Former judgment (187 S. W. 345) set aside, and judgment below affirmed in conformity to the Supreme Court’s answers to certified questions (234 S. W. 68).</p>

<p>Appeal from District Court, Kaufman County; Joel R. Bond, Judge. Oliver Starling was convicted of an unlawful manufacture of intoxicating liquors, and appeals.</p>

<p>Appeal from District Court, Austin County; M. C. Jeffrey, Judge. Action by the State against the Corporation of San Felipe de Austin to recover taxes. Judgment for the State, and defendant appeals.</p>

<p>Appeal from District Court, Austin County; M. C. Jeffrey, Judge. Action by the State against the Corporation of San Felipe de Austin to recover taxes. Judgment for the State, and defendant appeals.</p>