Volume 237 — South Western Reporter

<p>1. Appeal and error &wkey;>79( I) — Judgment held final as disposing of ail parties.</p> <p>In a suit for specific performance of an option to lease, a judgment against plaintiffs generally for cancellation of the lease, removal of cloud on defendants’ title, a writ of pos-sessionem favor of the defendants, finding that the lease instrument was without consideration, unilateral, and that no recovery could be had thereon, and awarding all costs against the plaintiffs generally, held to constitute a final judgment against all plaintiffs, though elsewhere judgment specifically named all but one plaintiff, and hence is appealable.</p> <p>2. Appeal and error &wkey;>80(l) — Judgment in suit on lease option held to dispose of ail issues.</p> <p>In a suit for specific performance of an agreement to lease, a’judgment denying specific performance, but not awarding damages on the contract, canceled and held for naught, held to have disposed of all the issues, so that it is final and appealable.</p> <p>3. Judgment 194 — 'Though entry may Jje irregular and imperfect, issues may be disposed of by necessary implication thus making the judgment final.</p> <p>Although a judgment may be irregular and imperfect in failing expressly to dispose of some issues, they may be disposed of by necessary implication, and the judgment made thereby final as to all issues and parties.</p> <p>4. Appeal and error <&wkey;IIM — Supreme Court may remand cause to Court of Civil Appeals to pass on issues.</p> <p>Where the Court of Civil Appeals had jurisdiction to pass upon assignments of error presented, but dismissed the case, the Supreme Court will remand it for determination of issues.</p>

<p>Insurance &wkey;»l02 — Agency held terminated by change in charter and form of insurance; “quit doing business.”</p> <p>Where one was employed as agent by an assessment company, receiving as compensation a certain percentage of the first year’s assessments, his contract, being applicable only to that kind of business, was terminated where the company made a voluntary change in its charter and ceased to write assessment insurance and became an old-line company, under a provision in the agency contract that if, for any reason, the company “deem it advisable to quit business in Texas during the life of this contract, then from the time the association is no longer authorized to do business in Texas the contract shall be void so far as any future business is concerned, but as to all the rights and liabilities existing at the time of the said cessation of business the contract shall remain in full force;” for, when the company amended its charter changing the character of insurance it was authorized to write from that of assessment to that of level premium, it “quit doing business” within the meaning of the contract, although it continued in force its old certificates written under the assessment plan, and although it continued doing business in the state under its new charter powers.</p>

<p>Error to Court of Civil Appeals of Ninth. Supreme Judicial District.</p> <p>Action by W. H. Keen against the West Dumber Company. From a judgment of the Court of Civil Appeals (221 S. W. 625) affirming a judgment for plaintiff, defendant brings error.</p>

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Action by E. H. Young against the City National Bank of Galveston, to vacate a judgment. A judgment for defendant on sustaining general demurrer to the petition was reversed by the Court of Civil Appeals (223 S. W. 340), and the case remanded for new trial, and defendant brings error.</p>

<p>1. Executors and administrators <&wkey;>501 — Statute held to authorize administrator to retain commissions without payment into court.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3621, allowing executors and administrators a 5 per cent, commission, allows the administrator to retain his commission in his hands, and does not require that he pay it into the treasury of the court, and then have the court order it repaid to him on his application.</p> <p>2. Executors and administrators <&wkey;537(ll)— Sureties on administrator’s bond held entitled to deceased administrator’s commissions.</p> <p>In action on an administrator’s bond, where plaintiffs were awarded full judgment for a shortage in the administrator’s accounts, he having died without making settlement, held that the sureties were properly allowed the commissions due him under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3621.</p> <p>3. Appeal and error <&wkey;l 151 (3) — Appellate courts held not entitled to disturb allowances on account of deceased administrator.</p> <p>In an action on the bond of a deceased administrator, where the jury on submitted question as to how much was paid out by administrator as claims had ascertained and allowed certain items of credit on his account, and judgment had been rendered accordingly, it was beyond the power of the Court of Civil Appeals to add to the items so found, since to do so would constitute an invasion of the province of the jury.</p> <p>4. Executors and administrators <&wkey;>537(ll)— Simple interest held properly allowed on balance due from deceased administrator from his death.</p> <p>In an action on the bond of a deceased administrator against whom a shortage was found, simple interest was properly allowable on the balance found owing to the plaintiffs from the date of the death of the administrator.</p>

<p>1. Contracts &wkey;237(l)— Modification by which compensation of party is changed without new consideration is not enforceable.</p> <p>A modification of an existing contract' by which one party thereto agrees to give or receive more or less than he would under the-terms of the original contract without a new consideration is not enforceable, since the other-party agrees to do nothing which he had not already agreed to do.</p> <p>2. Insurance <&wkey;84(I) — Promise to increase-compensation under contract terminable at will is enforceable.</p> <p>Where a contract with an insurance agent was terminable at the will of either party, a-subsequent modification of it so as to increase-'the compensation to the agent without any new consideration is enforceable, since the agent was not bound to continue to render services-at the original compensation, and, if the principal knew he was rendering such services in reliance upon the promise for increased compensation, he would be estopped to deny that-promise.</p> <p>3. insurance &wkey;>84(2) — Clause that termination of contract terminates right to compensation prevents claim for unearned compensation.</p> <p>A clause in the contract of an insurance-agent, who was entitled to future commissions, on certain business procured by him, that the termination of the contract should terminate-the right of the agent to further compensation, prevents the agent from claiming compensation,, which had not been earned at the date the contract was terminated.</p> <p>4. Insurance &wkey;>84(2) — Agent’s contract held to permit recovery of commission earned when relationship terminated.</p> <p>A provision in a contract with an insurance •agent who was entitled to commissions on subsequent payments on policies procured by him that the payments to the agent prior to the termination of the contract at the will of either party should be full compensation merely limits the agent’s compensation to that which he •had earned at the date of the termination of the contract, and not to that which had been paid him by the company at that date.</p> <p>•5. Insurance <&wkey;84(l)— Bonus to agent op- ' tional with company not enforceable until option is exercised.</p> <p>Where the contract of employment of an insurance agent clearly provided that the bonuses therein specified should be optional with the company, the agent cannot collect any of the bonuses without alleging that the company had exercised its option to pay them.</p>

<p>1. Injunction <&wkey;l6 — Will not issue where there is clear adequate remedy at law.</p> <p>An injunction will not be granted to a person who has a plain and adequate remedy at law, which is as efficient as the remedy in equity.</p> <p>2. Injunction <@=»16 — Statute does not authorize injunction where remedy-at law is plain.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, subds. 1, 3, authorizing injunction where it appears the party is entitled to the relief demanded, and such relief requires the restraint of some prejudicial act, and in all cases where the applicant is entitled thereto under the principles of equity, and as provided by statute, irrespective of any legal remedy at law, does not authorize the issuance of an injunction regardless of the adequacy of a remedy at law.</p> <p>3. Landlord and tenant &wkey;>280 — Injunction not issued to compel tenant to yield possession.</p> <p>A landlord is not entitled to mandatory injunction to compel a tenant to yield possession at the end of the term, since he has a legal remedy by an action for forcible entry and detainer, or, if he does not desire to go into a justice court, by an action of trespass to try title, with an ancillary writ of sequestration to recover possession.</p>

<p>Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.</p> <p>Bell Ard was convicted of transporting liquor • in violation of the prohibition laws, and he appeals.</p>

<p>Appeal from District Court, Bexar County; S. 6. Tayloe, Judge.</p> <p>John E. Wagner was convicted of burglary. and he appeals.</p>

<p>1. Sequestration <&wkey;2l — Defendant in trespass to try title held not entitled to damages.</p> <p>In trespass to try title, where plaintiff sued out a writ of sequestration, but defendant re-plevied the property, and, though the sheriff was nominally in charge of the premises for about eight days, he did not deprive defendant of possession or interfere with his business, and defendant suffered no loss of profits, no actual damages were recoverable.</p> <p>2. Sequestration <&wkey;2l — Loss of credit not element of actual damages.</p> <p>Loss of credit may be looked to in assessing exemplary damages, but is not an element of actual damages from the wrongful levy of a writ of sequestration.</p> <p>3. Sequestration <&wkey;21 — Attorney’s fees not recoverable as actual damages.</p> <p>Attorney’s fees cannot be recovered as actual damages for the wrongful levy of a writ of sequestration.</p> <p>4. Sequestration <&wkey;2l — Issue of damages not submitted when no actual damages shown.</p> <p>Defendant, in trespass to try title, having proved no actual damage from the levy of a writ of sequestration, was not entitled to a submission of the issue of damages.</p> <p>5. Principal and agent <&wkey;I00(2) — Agent’s bookkeeper held without authority, to make oral lease pursuant to telegram from the agent.</p> <p>Where the son-in-law and bookkeeper of plaintiff’s agent, on request of a prospective purchaser of a lease, wired the agent, asking what guaranty he would require for an extension of the lease, and received an answer stating the terms on which the lease would be extended, the bookkeeper had no authority, actual or apparent, to bind plaintiff by an oral contract, but only authority to communicate the' contents of the telegram to the prospective purchaser.</p> <p>6. Landlord and tenant <&wkey;)8(3) — Evidence held to support findings as to lease by es-toppel.</p> <p>Evidence held sufficient to support findings that defendant, having seen a telegram from plaintiff’s agent stating the terms on which a lease would be extended, was led to believe that the lease would be extended, and thereby caused to purchase the lessee’s business and make improvements in the building, that the agent on his return home visited the place of business and accepted defendant as his tenant, and that at the time he knew or had reasonable cause to believe that defendant bad acquired the business and made the improvements with the intention of holding the premises for an additional period in excess of the term of the original lease.</p> <p>7. Landlord! and tenant &wkey;>l7 — Lessor held bound for extended term on principles of es-toppel.</p> <p>Where defendant, having seen a telegram from plaintiff’s agent stating the terms on which a lease would be extended, was led to believe that the lease would be extended and thereby caused to purchase the lessee’s business and make improvements, and the agent on his return home visited the place of business and accepted defendant as his tenant for a term of two years in excess to that provided in the original lease, and at the time knew or had reasonable cause to believe that defendant had acquired the business and made the improvements with the intention of holding for such additional term, the lessor was bound on principles of estoppel.</p>

<p>Appeal from Dallas County Court, at Law; Frank G. Harmon, Judge.</p> <p>Suit by G. E. Shirley against W. W. Mur-rah, and from a decree granting a temporary mandatory injunction the defendant appeals.</p>

<p>1. Appeal and error &wkey;930(3) — Issues not submitted to jury presumed found by court so as to support judgment.</p> <p>Where case is submitted to jury on special issues, all issues presented in the pleadings not specially submitted must be deemed found by the court in such manner as to support the judgment, provided there be evidence to support such finding (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985).</p> <p>2. Appeal and error <&wkey;>282 — Motion for new trial unnecessary in ease tried by court.</p> <p>In trials before the court without a jury, it is not necessary to file a motion for a new trial as a predicate for an appeal.</p> <p>3. Appeal and error &wkey;722( I) — Sufficient that assignments of error are substantially the same as those in motion for new trial.</p> <p>It is sufficient that the assignments of error are in substance the same as those presented by appellants’ motion for a new trial.</p> <p>4. Mines and minerals <&wkey;75 — Lessor held bound by practical construction given lease by accepting annual payments for extensions.</p> <p>Where an oil lease for 10 years and as much longer as oil, etc., was produced in paying quantities recited a present consideration of $640 and stated that it was for 12 months from date, and that the lessee agreed to commence operation “within * * * hereof,” and that, if he failed to do so, the lease should become void unless the lessee should give notice of his intention to keep it alive and pay for such extension “the sum of * * * dollars per year,” and the lessee accepted $640 as rent for each of 3 years, she was bound by the practical construction placed thereon by her and the lessee.</p> <p>5. Mines and minerals <&wkey;73 — Lease held a present lease effective until lessee required to commence drilling or pay rentals and subject to termination only for default in respect thereto;</p> <p>An oil lease for 10 years or as much longer as oil should be produced, which recited a present consideration of $640 and provided that it should become Void unless the lessee commenced operations within one year or paid $640 a year for an extension, was a present lease effective until the lessee was required to commence drilling or pay rentals and subject to termination only for failure to begin such drilling or pay such rentals.</p> <p>6. Mines and minerals &wkey;>77 — Provisions for forfeiture in lease must be strictly construed.</p> <p>Provisions for forfeiture in oil leases are strictly construed, and the right of forfeiture must clearly appear.</p> <p>7. Homestead &wkey;>ll4 — Oil lease with provisions fo.r annual payments held not executory contract to convey interest.</p> <p>Under an oil lease providing that it should be void if drilling was not commenced within one year unless the lessee paid $640 a year for an extension, the lessee had a valid option to continue the lease supported by a valid consideration, and, where a producing well had been drilled during the time for which rentals had been paid, the lease became fully effective and was fully executed without the necessity for any other instrument, and hence was not ineffective as an executory contract to convey an interest in a homestead.</p> <p>8. Homestead (@=>142(2), 145 — Rights dp not pass to children, and surviving wife has right to forego claim.</p> <p>A homestead right upon the husband’s death did not pass to the children by inheritance, and the surviving wife had a right to forego her claim of any possible homestead exemption.</p> <p>9. Mines and minerals <&wkey;>75 — Option to continue lease by paying rental enforceable when supported by valuable consideration.</p> <p>Under an oil lease providing for termination if drilling was not commenced within one year unless the lessee paid a specified consideration for an extension, the option to continue the lease by paying the specified rental could be specifically enforced at the instance of the lessee when supported by a valuable consideration.</p> <p>10. Husband and wife <@=»273(I) — -Surviving wife authorized to accept rents under oil lease of community property after husband’s death.</p> <p>Under an oil lease executed by a husband and wife bn community property and providing that it should terminate if a well was not commenced within one year unless specified rentals were paid for an extension, the wife upon the husband’s death, in the absence of any community administration, had legal authority, as representative of all interests in.the community estate, to discharge the obligation by accepting: the rents; and her acceptance thereof continued the lease in full force and effect as-against the undivided interests of the children-as well as her own interest.</p>

<p>1. Trial <&wkey;350(4) — Refusal to submit issue as to whether defendants entered into different contract after that alleged in cross-complaint held erroneous.</p> <p>In an action to recover an amount due for ice sold and delivered to defendants, who counterclaimed for ^damages for failure to furnish sufficient ice to supply their retail trade as agreed, the court erred in refusing to submit an issue as to whether defendants, during an ice shortage, agreed with plaintiff as to hpw much ice should be delivered to them while such shortage continued.</p> <p>2. Trial &wkey;>350(4) — Refusal to submit issue as to plaintiff’s readiness and willingness to perform contract held erroneous.</p> <p>In an action to recover for ice sold defendants, who counterclaimed for breach of contract in failing to furnish sufficient ice to supply their retail trade, to which plaintiff submitted evidence that defendants quit selling ice while plaintiff was furnishing more than the quantity per day agreed on, and that it was ready and willing to continue to furnish ice daily for the remainder of the season, but that defendants failed to call for it after a certain date, the court erred in refusing to submit the issue as to plaintiff’s readiness and willingness to deliver ice to defendants.</p>

<p>I. Evidence <&wkey;>'222(9), 265(18) — Assignees’ admissions prior to assignment held admissible weight being for the jury.</p> <p>Where G. and L. purchased cattle together, and G. was accused of murdering L. and jailed, and L.’s administrator went to G.’s mother’s home, where the cattle were kept, and L.’s cattle were pointed out by G.’s mother, who said .all others were hers or her children’s, in an action by the mother on a claim assigned by G. for conversion, her prior admissions of B.’s ownership were admissible; the time and circumstance of the statement, and the fact that the mother had at the time no pecuniary interest, being merely matter for the jury to consider in determining the weight to be given the admissions.</p> <p>2. Trover and conversion &wkey;*66 — Question for jury.</p> <p>In an action for conversion of cattle fteZdl that the jury should have been permitted to pass on the weight of the evidence, and it was error to direct a verdict for plaintiff.</p>

<p>Appeal from District Court, Bexar County ; Robert W. B. Terrell, Judge.</p> <p>Suit by J. W. Howard against R. Quijano and the American Commercial Company of Laredo. From an order overruling the plea of privilege of the corporation, it appeals.</p>

<p>Error from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Action by the Southern Engine & Pump Company against W. C. Turnbow. From judgment for plaintiff, defendant brings error.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by the Earley-Foster Company against the United Sugar Companies S. A. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Bills and notes <&wkey;469 — Waiver of protest not alleged against indorser states no cause against him.</p> <p>Where a waiver of protest is relied on against an indorser of a note, it must be expressly alleged, or the petition will not state a cause of action against the indorser.</p> <p>2. Appeal and error &wkey;>9IO — Court cannot assume action on note, not brought in time to fix indorser’s liability.</p> <p>In view of Rev. St. art. 579, fixing the liability of indorsers, without protest or notice, by bringing suit on the note before the first term of court after the right of action accrues or before the second term, if good cause is shown for not proceeding before the first term, where there is nothing on the record to show that an action on a note was not so brought, the Court of Appeals cannot assume that it was not.</p> <p>3. Bills and notes <&wkey;469 — Pleading in aiction on note need not negative defense.</p> <p>Where plaintiff’s pleading in an action on a note alleged that defendant indorsed the note, was liable thereon, and bound to pay it, and did not predicate liability solely upon the protest otherwise set up, it was sufficient statement as against general demurrer; plaintiff not being required to negative everything that would defeat the action.</p>

<p>1. Parties (&wkey;40(2) — Third party having interest in notes sued on held entitled to intervene.</p> <p>In an action on notes and to foreclose a vendor’s lien thereon, a third party who had an interest in the notes by assignment or by lien is entitled to intervene in the suit to protect his interest.</p> <p>2. Appeal and error <&wkey;> 1040(1) — Sustaining general demurrer harmless error where evidence subsequently passed upon.</p> <p>Where after sustaining a. general demurrer the court nevertheless passes on the evidence and makes findings thereon, the erroneous action on the demurrer may be harmless.</p> <p>3. Brokers ,<&wkey;60 — Holder, of vendor’s lien notes agreeing to pay commission when first note paid held liable on rescinding sale and canceling notes.</p> <p>Where a holder of vendor’s lien notes agreed to pay a third party a commission when the first note was paid, and subsequently voluntarily secured a rescission of the sale and cancellation of the notes instead of enforcing payment thereof by judgment and foreclosure, he became liable for the payment of the commission.</p> <p>4. Parties &wkey;48 — General judgment against in-tervener held improper.</p> <p>Where one holding an interest in notes for commissions intervened in a suit on the notes and to enforce a vendor’s lien, and a finding that the lien ought not to be enforced was proper, a general judgment against intervener Siela erroneous; the only judgment that would have been proper being one denying the lien and otherwise dismissing the intervention without prejudice to intervener’s other rights, or one denying the lien, but setüing and adjudicating the rights established on the trial.</p>

<p>Appeal from County Court, Williamson County; E. D. Love, Judge.</p> <p>Action by the Granger Mercantile Company against J. F. Wieser & Co. Judgment for plaintiff, and defendant appeals.</p>

<p>Trial i&wkey; 120 (2)— Argument that judgment for plaintiffs would cause damage to home boys in action for negligence of oil company held ground for reversal.</p> <p>Where, in an action for damages from fire caused by alleged negligence of an oil company and its agents in selling explosive fluid in place of kerosene, counsel for the company in argument stated that one of the agents was under bond to the company, and that judgment against the company would be against the agent also, that the company was a Texas organization, owned by Texas men and its employees, all home boys, and that judgment against the company would mean the agent’s ultimate discharge, matters not in evidence and prejudicial, was ground for reversal.</p>

<p>1. Witnesses <@=>2:70(2) — Court’s refusal on own motion to permit further cross-examination on subject not within issues held proper.</p> <p>In action against dentist for negligent extraction of an adult’s tooth, in which plaintiff cross-examined one medical and two dental experts on the subject of baby teeth, a subject not within issues, court’s refusal on its own motion to permit plaintiff to proceed with the cross-examination of defendant with reference to baby teeth, after plaintiff had proceeded with such examination for some time, held■ proper.</p> <p>2. Witnesses <©=3267 — Right of cross-examination should not be unduly restricted.</p> <p>The right of cross-examination should not be unduly restricted by the court.</p> <p>3. Witnesses <©=>270(1) — Litigant has no right to cross-examine witness upon irrelevant and immaterial matters.</p> <p>The litigant has no right to cross-examine upon matters which are irrelevant and immaterial.</p> <p>4. Trial <©=>29(3)— Court’s remark in refusing to permit further cross-examination held not improper.</p> <p>In action against dentist for negligent extraction of an adult’s tooth in which defendant had cross-examined three expert witnesses as to disintegration of the roots of baby teeth, a. matter not within the issues, court’s statement in refusal to permit further cross-examination on such subject that, “In the interest of time I am going to stop this baby tooth business; you may have your bill on it, but of my own motion I am going to stop -any further examination” iheld- not improper.</p>

<p>1. Judgment <@=>497(1) — Jurisdictional facts not recited conclusively presumed on collateral attack.</p> <p>In a collateral attack on a judgment, jurisdictional facts not recited will be conclusively presumed.</p> <p>2. Execution <@=>258 — On collateral attack, evidence held to show that the court entering the ' judgment under which sale was made was not without jurisdiction.</p> <p>In a collateral suit involving the validity’of sale of land under execution, in proceedings which had been begun by foreclosure of lien on certain animals, resulting in a foreclosure sale of stock, following which the land was sold under execution for the balance, the evidence did not show lack of jurisdiction, in that the animals were not of the value of $200 or more, where it showed that two of the four were sold for $55 and that one' had died and another been stolen before the sale.</p> <p>3. Execution <@=>275(2,3) — Irregularities held not to affect title of purchaser who was not a party.</p> <p>On a collateral attack on an execution sale, where the purchaser thereat was not a party to the judgment, irregularities as to issuance of the execution and return of the writ and inadequacy of price did not affect the purchaser’s title.</p> <p>4. Evidence @=>383(7) — Trustee's deed held prima facie proof of nonpayment of the debt and regular foreclosure.</p> <p>Where a deed by substitute trustee recited facts showing a valid sale for adequate price, under deed of trust conferring authority on substitute trustee to sell on nonpayment of the debt, such deed was prima facie evidence of a regular foreclosure, in view of a provision in the deed of trust that any deed given by the trustee or substitute, and any and all statements therein as to nonpayment, request to sell, time, place, terms of sale, etc., shall be taken by courts as prima facie evidence that the said recitals are facts.</p> <p>5. Deeds @==>38(2)— Execution @==312 — Mortgages @=>48(2) — Description held sufficiently certain under rule that it could be made cer-fain.</p> <p>’ Deed of conveyance, and sheriff’s deed on sale on execution, and trustee’s deed on sale under mortgage foreclosure, which describe the property as all of the N. survey No. 325 on the Rio Grande, as described in patent from state to N., dated April 9, 1908, book 25, p. 321, of deed records of E. county, containing approximately 120 acres and being about 40 miles south 45° east from county seat of E. county, adjoining what is known as W. survey No. 44, were sufficient under the rule that that is certain which can be made certain.</p>

C. Jeffrey, Judge. Action for divorce by Mat Rauch against Anna Ryan Rauch. From a decree for plaintiff, and the allowance to defendant out of the community property, both parties appeal.

Suit by C. P. Ray & Co. against the Da Rue & Barron Company. From judgment sustaining defendant’s plea of privilege to be sued in another county and ordering the cause of action transferred to the district court of the other county, plaintiff appeals.

<p>Appeal from District Court, Bexar County; Robert W. B. Terrell, Judge.</p> <p>.Action by C. Williamson against the Modern Woodmen of America. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Pleading <&wkey;204(2) —General demurrer to petition in its entirety properly overruled when one cou.nt good.</p> <p>In trespass to try title, a general demurrer to the petition in its entirety, containing two separate counts, one of which expressly averred title in fee simple, and specially and affirmatively prayed for the. recovery of the land, was properly overruled.</p> <p>2. Vendor and purchaser &wkey;>257 — Grantor reserving lien is owner of superior title, and can convey it to another.</p> <p>A grantor expressly retaining a vendor’s lien to secure payment of a purchase-money note until the money was paid was the owner of the superior legal title to the land, and could convey such title to another.</p> <p>3. Vendor and purchaser <§=267 — Vendor’s su.perior title vested in vendee if note paid by vendee and lien released or note paid by another consenting to such release.</p> <p>If a purchase-money note to secure which a vendor’s lien was reserved was paid by the vendee, and the lien released by deed, or if a third person buying or paying the note by agreement with the vendee, agreed to the release by deed, the original vendor’s superior title was thereby vested in the vendee, and a deed subsequently made by the original vendor conveyed no title.</p> <p>4. Vendor and punohaser &wkey;>267 — Lien not discharged when deed of release induced by false representations.</p> <p>If a person buying or paying a vendee’s note under an arrangement with the vendee paid the money for the sole purpose of taking over the note and did not agree to release or waive the lien and the vendee, by the false and fraudulent representation that he himself was paying the note, induced the writing and recording of a deed of release, the lien was not thereby discharged.</p> <p>5. Vendor and purchaser <&wkey;>265(I) — Transaction whereby third person furnished money to pay lien note held sale, with amount of note to be applied on price.</p> <p>Where plaintiff agreed with a vendee who was unable to pay a vendor’s lien note that she would buy or pay off the note, and pay the vendee $100 for a conveyance of the land, she was not a mere volunteer paying off the indebtedness, or a mere lender of the money, and the transaction amounted to an agreement to buy the land and have the vendor’s lien note constitute a part of the purchase price.</p> <p>6. Vendor and purchaser <&wkey;267 — Evidence held to warrant inference that purchaser was to hold lien of former vendor until conveyance.</p> <p>Where plaintiff agreed with a vendee who was unable to pay a vendor’s lien note to buy or pay off the note, and pay the vendee $100 for a conveyance, evidence held to warrant the inference that until the conveyance she was to own and hold the lien.</p> <p>7. Subrogation &wkey;>3l (5) — Vendor and purchaser <&wkey;26l(6) — Lien .not discharged where third person bought or discharged note by agreement with vendee.</p> <p>Where plaintiff agreed with a vendee to buy or pay a vendor’s lien note, and pay the vendee $100 for a conveyance, and did pay the amount of the note and received the note, even though there1 was no express agreement that she was to be the owner and holder of the lien, the lien, under the doctrine of equitable assignment or subrogation, would not be discharged.</p> <p>8. Appeal and error <&wkey;880(I) — Defendant not entitled to complain of rendition of costs against sureties on a replevin bond.</p> <p>In trespass to try title, defendant cannot assign error on the rendition of court costs against the sureties on a replevin bond; that being a matter for the sureties to complain of.</p>

H. Miller, Judge. Action by G. T. Freasier and another against the St. Louis, Brownsville & Mexico Railway Company and A. R. Ponder, receiver. Judgment for plaintiffs against defendant Railroad Company, with no recovery as against the receiver, and defendants appeal.

<p>I.Deeds <&wkey;70(2) — Signing without reading because of representations on which grantor has right to rely does not prevent relief.</p> <p>The rule that a person signing a written instrument without reading it when he has ability and opportunity to do so cannot afterwards complain that he did not know its contents did not apply where representations were made to induce plaintiff to execute a deed which were false and fraudulent and on which he had a right to rely as being true.</p> <p>2. Appeal and error ¡&wkey;1050(l)— In suit to cancel deed admission of deed in chain of title held harmless.</p> <p>In a suit to cancel a deed for fraud, where defendant claimed no title to the land otherwise than by virtue of such deed, the admission of a deed in plaintiff’s chain of title, if erroneous, was harmless, since a grantee asserting no other right or title than that conveyed by the deed cannot urge as against, the grantor that he did not own the land when he conveyed it.</p> <p>3. Appeal and error &wkey;3664(4) — Presumed that letter not in statement of facts was not admitted as stated in bill of exceptions.</p> <p>Though the bill of exceptions states that a letter was admitted as evidence, where it is not in the statement of facts agreed to by the parties and approved by the trial judge, the court is bound by the statement of facts and must assume that the letter was not admitted.</p> <p>4. Cancellation of instruments <&wkey;27 — Grantor need not show injury from conveyance.</p> <p>In a suit to cancel a deed for fraud, it did not devolve on plaintiff to show that he was injured by the conveyance.</p> <p>5. Cancellation of instruments &wkey;»27 — Grantor held injured sufficiently to sustain action if injury necessary.</p> <p>Where a deed was not a mere quitclaim, but one which would estop the grantor from holding the land under an after-acquired title against the vendee, and would not estop the vendee from claiming under another title, injury to the grantor sufficiently appeared to support a suit for cancellation for fraud, assuming that it was necessary to show such injury, even though the grantor had no title.</p> <p>6. Estoppel <&wkey;37 — Relative to after-acquired title conveyance held not mere quitclaim.</p> <p>A deed with habendum to the grantee, his heirs and assigns forever, so that neither the grantor nor his heirs nor any persons claiming under them should at any time thereafter claim or demand any right or title to the premises, was not a mere quitclaim, but would es-top the grantor from holding the land under an after-acquired title.</p> <p>7. Appeal and error <&wkey;843<2) — In suit to cancel deed determination of question whether instrument of confirmation was a conveyance held unnecessary.</p> <p>In a suit to cancel a deed, where defendant asked no affirmative relief, but merely pleaded and relied on an instrument confirming the deed as a defense to the claim of cancellation, it was unnecessary to determine whether the instrument confirming the deed was sufficient in itself to convey the land.</p>

<p>1. Appeal and error &wkey;>757(3) — Requisites of statement in appellant’s brief enumerated.</p> <p>The statement in appellant’s brief, under rule 31 (230 S. W. vii), should contain “a clear and accurate statement of the record” bearing on the propositions on which the appeal is rested, be “entire,” and set out the full substance of the evidence.</p> <p>2. Master-and servant &wkey;>286(30) — Negligence as to section hand riding on derailed motor car held for jury.</p> <p>Evidence in action for injury to a member of a section crew by derailment of a motor car, on which he was riding, through a crowbar falling off the from of it, held to require submission of the issues of whether the car was in a reasonably safe condition, whether it was negligence to run it with the tools loaded as they were in the then condition of the track, and whether there was negligence in the rate of speed.</p> <p>3. Release ®=»58(6) — Issue of obtainance by fraudulent representations required by evidence to be submitted.</p> <p>Evidence in a servant’s action for injury held to require submission of the issue whether a release from damages was obtained by false representations.</p> <p>4. Master and servant <§=»I37(3)— Care required in placing tools on motor car.</p> <p>Though a motor car, derailed by a crowbar falling from the front of it, with resultant injury to a member of the section crew, was one in general use and not in bad condition, yet the master may be held negligent; the troughs thereon for tools not being large enough for all then loaded thereon.</p> <p>5. Master and servant t&wkey;288(6) — Assumption of risk of derailment of motor car held for jury.</p> <p>The question of assumption of risk by a member of a section crew, injured by derailment of motor car by falling of crowbar from the front of it, involving questions of fact, held for the jury.</p> <p>6. Accord and satisfaction &wkey;»2(2) — Receipt of wages estimated for time of incapacity from injury not bar to action for injury.</p> <p>Mere receipt by injured employs of money voluntarily tendered as wages for a certain number of weeks during which it was estimated he would be in the sanitarium is not bar to action for the injury.</p> <p>7. Pleading <&wkey;139 — Pleading of set-off necessary.</p> <p>A set-off, to be available, must be pleaded.</p>

B. Minor, Judge. Suit by R. C. Conn against the San Antonio National Bank and others. Judgment for the plaintiff against the named defendant, and that defendant appeals.

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Suit by E. G. Earle and others against the American Rio Grande Land & Irrigation Company and the Board of Water Engineers to set aside certain water rates as fixed by the Board and to enjoin the company from enforcing the rates. From an order overruling a motion to dissolve the temporary injunction granted to plaintiffs against the company alone and another order overruling the company’s plea of privilege to be sued in the county of its residence, the company appeals.</p>

County ; J. R. Warren, Judge. Action by J. C. Bradberry against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. One Butler, an employé of appellant, attempted to release the brake on a box car it was necessary to move. The brake was so tightly set he could not release it; and ap-pellee, also an employé of appellant, in the discharge of duty he owed to do so, went to the top of the car and assisted Butler.

Denton, Judge. Action by Mary Fleming, Dewey Henderson, and others against O. O. Canterbury. Judgment for defendant against plaintiffs other than Dewey Henderson, and such other plaintiffs appeal. By a deed dated November 21, 1890, J. H. Whiteman and his wife conveyed 75 acres, more or less, of land in Red River county, to Jesse Crawford and Gen. Henderson.

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Action by T. W. Martin against C. W. Hemphill. From a judgment of the Court of Civil Appeals ’affirming a judgment of the district court for defendant (221 S. W. 333), plaintiff brings error.</p>

<p>Appeal from District Court, -Bell County; M. B. Blair, Judge.</p>

<p>1. Criminal law 4&wkey;538(3) — Confession enough to identify guilty party.</p> <p>A confession of accused is sufficient to identify him as the guilty party, the offense being substantially proved aliunde.</p> <p>2. Criminal law &wkey;>736(2)— Submission to jury necessary on evidence raising issue of volun-tariness of confession.</p> <p>The issue of voluntary character of defendant’s confession, when raised by his testimony or the •circumstances surrounding or preceding the making of it, should be submitted to the jury%</p> <p>3. Criminal law <®=>l 173(2) — Refusal to submit isuse- of voluntary confession not harmless.</p> <p>Refusal to submit issue of voluntary character of defendant’s confession, the most material evidence against him, cannot b!e held harmless because of the large number of witnesses contradicting his testimony; whom the jury would believe being a matter for them.</p>

C. Dancy, Judge. - Action by S. Martinez against Jack Goode. From judgment for defendant in a justice’s court, plaintiff appealed to the county court, where be obtained judgment, from which defendant appeals.

<p>1. Appeal and error <@==>690(3)—Bills of exception, not showing affirmatively that predicate was not laid for evidence, do not support such objection.</p> <p>Bills of exception, complaining of the admission of impeaching testimony without a predicate being laid for its introduction, are insufficient to support such complaint, where they do not show affirmatively that no predicate was laid.</p> <p>2. Exceptions, bill of <@=>56(3)—Trial judged certificate to bill does not certify that facts assumed in objections were true.</p> <p>Where the bills of exception did not show affirmatively that no predicate was laid for impeaching testimony, the certificate of the trial judge that certain objections were made to the admission of the testimony could not be construed as a certificate that the facts assumed in the objections were true.</p> <p>3. Appeal and error <@=931 (6)—Presumed that evidence improperly admitted did not influence trial judge.</p> <p>When a case is tried to the court without a jury, and there is sufficient and competent evidence to support his judgment, it must be pre-sunied that evidence improperly admitted .did not affect his findings or influence his judgment, unless the contrary affirmatively appears, especially where the testimony was of slight probative force.</p>

<p>1. Venue <@=>7 — Contract held not to provide for performance by seller in county in which buyer had place of business.</p> <p>Where seller, to which sugar was being shipped under bill of lading designating place in which seller did business as destination, on sale thereof while the sugar was in transit under contract entitling buyer to divert the shipment to a point outride the state, and where neither the invoice made out by seller and attached to the draft for price sent to city in which buyer had its place of business, nor the bill of lading attached to the draft, show that the sugar was to be delivered in such city, the contract did not provide for performance by seller in such city'1 under Rev. St. art. 1830, subd. 5, authorizing suit to be brought in any county in which a defendant has contracted in writing to perform the obligation.</p> <p>2. Venue Contract made in county in which offer was accepted.</p> <p>Where s-ales contract was made by seller's acceptance over the long distance telephone in county in which it had its place of business, of offer made by buyer in other county, in which buyer had its place of business, the contract was made in the county in which the seller had its place of business, and the cause of action and buyer’s action against the seller arose therein, and not in the county of the buyer’s place of business, within Rev. St. art. 1830, subd. 24, providing that suits against a private corporation may be commenced in any county in which the causé of action, or any part thereof, arose.</p>

<p>I. Master and servant <@=>721/2 — Judgment for traveling expenses held unwarranted.</p> <p>Where defendant and plaintiff communicated concerning employment of plaintiff, and defendant informed plaintiff that he would pay' traveling expenses if plaintiff came to the city where defendant was situated and they “did business,” and an alleged contract of employment was entered into and plaintiff sued for three weeks’ salary and traveling expenses, a judgment allowing him traveling expenses but denying recovery of salary was inconsistent, in that payment of expenses depended upon employment.</p> <p>2. Partnership <3»44 — Burden on plaintiff to . .prove partnership on which action based.</p> <p>Id an action to recover on the theory that ■defendants were partners, the burden was on the plaintiff to prove this relationship by affirmative evidence.</p> <p>3. Partnership <g»49 — Need not be shown by ; direct evidence but may be shown by circumstances.</p> <p>> Partnership need not be shown by direct evidence, but may be shown by circumstances— by the acts and conduct of the parties.</p> <p>4. Partnership <S=»2I6(3)— Defendants sued on contract not to be held as partners solely on proof of contract with third person.</p> <p>Plaintiff, who in suing defendants seeks to hold them alone as partners on a contract, cannot so hold them solely on proof of a contract with a third person; who is not alleged to be a partner or acting for the partnership, and which contract the evidence shows was made without their knowledge and consent.</p> <p>5. Partnership <©=o43 — -All of several persons operating under a trade-name held liable to third person for abts of each.</p> <p>If persons operating together under a trade-name each held himself out, or permitted himself to be held out, as an official of the company, and holding a beneficial interest in the business in such way as to sliare in the profits and losses thereof, all may be held to the third person for acts of each, if within the apparent scope of his authority and the third person had no notice of limitations on such authority. •</p>

<p>1. Waters and water courses <&wkey;>l52(ll)— Former judgments fix law as to water rights, though not ordering issue of process.</p> <p>An agreed judgment between parties in a federal court and a judgment of state court thereon concerning water rights were res ad-judicata as to such rights, but did not deprive court of power to entertain jurisdiction to enforce such adjudicated rights, and it was immaterial that there was no process ordered to issue; it being provided that processes of the court would be issued upon proper showing that such property rights were violated, until which no restraining orders were necessary.</p> <p>2. Waters and water courses &wkey;>l52(7) — Testimony held inadmissible on plea in bar in suit to enjoin diversion of water.</p> <p>In a suit to restrain defendants from diverting water to which plaintiff was entitled, court did not err in rejecting testimony on plea in bar offered to prove the customary diversion of water by defendants and their predecessors, because, if admissible, it would be in the hearing upon the main case to show that defendants were not taking water to which plaintiff was entitled, and for that reason no restraining order should be issued against defendants, but not upon any question pleaded in bar.</p> <p>3. Parties <&wkey;83 — Defendants held not entitled to complain of dismissal of cross-action by reason of lack of diligence.</p> <p>In action to confirm and enforce water rights under agreements and judgments, in which individual water users of plaintiff were not necessary parties, defendants, who asked that the individual water users be made parties, cannot complain of dismissal of cross-action against them where they did not seasonably make them parties after postponement for that purpose.</p> <p>4. Parties &wkey;j32 — Plaintiff not required to make unnecessary parties defendant.</p> <p>Plaintiff is not required to make parties defendant to its suit so that some matter between the defendants and such other parties about which it has no interest may be litigated.</p> <p>5. Estoppel <&wkey;>78 (I) — Plaintiffs held not es-topped by violation of temporary injunction.</p> <p>In action for writ of injunction restraining defendants from diverting water to which plaintiff was entitled under judgments, defendant cannot contend that, by violating the letter and spirit of a temporary injunction by entering into a contract with an upper appropriator to divert water above defendants’ headgate and deliver it on plaintiff’s land, plaintiff was es-topped as to its rights under the judgments.</p> <p>6. Waters and water courses <&wkey;>152(ll) — Decree held not to deprive defendants of right to use water not used by plaintiff.</p> <p>A decree enjoining defendants from using water, except for 5% days each month, and awarding plaintiff title to a certain amount of water, held not to be construed to prevent defendants from taking water at any time when not used by plaintiff, as such a construction would render it erroneous.</p> <p>7. Waters and water courses &wkey;»I52(3)— Pleadings held to warrant order restraining diversion of water.</p> <p>Pleadings in suit to confirm judgments and for a writ of injunction restraining defendants from diverting water to which plaintiff was entitled for the purpose of irrigating land held sufficient to support a restraining order.</p> <p>8. Waters and water courses <@=»I5I — Changing headgate without authority does not forfeit water rights.</p> <p>Appropriator of water did not forfeit water rights by changing its headgate without authority of the board of water engineers of the state, though liable for a penalty.</p> <p>9. Appeal and error <&wkey;488(2) — Temporary injunction remained in effect pending appeal.</p> <p>Where temporary injunction order was not appealed from and defendants answered that it had obeyed it, it remained in effect pending appeal from final judgment restraining appropriation of water during stated times.</p> <p>10. Appeal and error <&wkey;>l 152 — Formal decree reformed for erroneous matters therein where motion of appellee for new trial was overruled.</p> <p>Where appellee instituted three successive suits to prevent defendant from encroaching on water appropriations, and in each instance secured an affirmative judgment in its favor, but was not satisfied with the last judgment and filed a motion for a new trial, which was overruled, case will not be reversed for erroneous matters contained in the formal decree, which will be reformed and affirmed in accordance with the true meaning of the verdict and in consonance with rules of law applicable.</p>

<p>Railroads <&wkey;>337(2) — Obstruction of crossing and failure to light depot held not proximate cause of injury in climbing car.</p> <p>Plaintiff, who climbed on a flat car obstructing crossing and who fell in descending from other side, could not recover from railroad on theory that it was negligent in ■ obstructing street with train in violation of Vernon’s Ann. Pen. Code 1916, arts. 1531e, 1531f, and in failing to have depot, located 50 or 60 feet from crossing, lighted, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6591; such negligence not constituting the proximate cause of the injury.</p>

<p>Appeal from El Paso County Court at Law; J. M. Deaver, Judge.</p> <p>Action by J. R. Fenley against C. P. Crawford. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Brokers <§=371 — Contract to compensate broker by difference between agreed price and purchase price is valid.</p> <p>An agreement between parties competent to contract that the principal should' pay the broker a stipulated price for the land he desired to obtain and that the broker should have as compensation for his services the difference between that price and the price at which he might be able to purchase it is valid.</p> <p>2. Brokers <§=>71 — Notes to brokers for the amount of compensation agreed to held amply sustained by consideration.</p> <p>Where defendant contracted with the owner for purchase of oil royalties, but a dispute between them resulted in a suit pending when defendant authorized plaintiffs, as brokers, to procure the royalties for him at an increased price per acre and to. retain as compensation the difference between the increased price and the price they had to pay therefor, and thereupon plaintiffs procured a deed to the royalties for the price defendant originally agreed to pay, notes given by defendant to the brokers for the difference between that price and the increased price agreed on were amply sustained by consideration.</p> <p>3. Trial <§=>365(2) — Special issue held not misleading, though involved.</p> <p>A special issue as to whether plaintiffs had agreed to accept a smaller compensation for their services held not misleading when construed with other special issues, though it was somewhat involved.</p> <p>4. Brokers <§=>65(1) — Misstatement of opinion is not fraud.</p> <p>A statement by brokers that defendant would procure by a deed to oil royalties the royalties on back production, which was evidently only an opinion as to the legal effect of the deed, of which the defendant would know as much as the brokers, was not a fraudulent misrepresentation, even if incorrect.</p> <p>5. Brokers <§=>65(l) — Principal held not entitled to defeat recovery of compensation on ground of brokers’ misrepresentations.</p> <p>A principal cannot defeat recovery of compensation by his brokers for procuring oil royalties for him on the ground that the brokers misrepresented to him that, if he kept quiet, he would secure the royalties on back production, where the contract and deed were prepared by his attorneys in his presence, but in absence of the brokers, since he could not rely on a purpose to obtain a surreptitious advantage, and the omission of a provision covering the back production was his fault, and not the brokers’.</p> <p>6. Brokers <§=>65(l) — Not under duty to purchase for less than principal agreed to pay.</p> <p>Where the principal agreed to pay a specified price for oil royalties to his brokers, who were to have the difference between that price and the price at which they could purchase the royalties, they owed no duty to purchase for less than the agreed price even if able to.</p> <p>7. Brokers <§=>88(1.4) — Finding brokers did not know land could be procured cheaper negatives fraud in misrepresenting it could not.</p> <p>A statement by brokers to their principal that the land could not be procured any cheaper than the price the principal agreed to pay was not fraud depriving them of their right to have their agreed compensation of the difference between that price and the price they did pay for the land, where the jury found that at the time they made the statement brokers did not know the land could be procured at a price less than stated.</p>

<p>1. Evidence <S=»256 — Evidence held not to show agent signed shortage invoice under duress.</p> <p>In an action by a sales agent for commissions, where the principal claimed a shortage in his accounts exceeding the amount of the commissions, evidence "held insufficient to show that an invoice signed by the agent for the amount claimed as shortage was signed under duress of a threat to prosecute.</p> <p>2. Evidence <§=3591 — Testimony elicited by cross-examination construed most strongly . against examiner.</p> <p>In an action for an agent’s commissions, where the agent’s testimony that an invoice for the shortage claimed by his principal was secured from him by duress was first elicited by defendant’s cross-examination, such testimony will be construed most strongly against defendant.</p>

R. Warren, Judge. Action by C. C. Crews against T. W. Hal-liday and others. Erom a judgment for plaintiff, the named defendant and another appeal.

Appeal fróm District Court, Upshur County; J. R. Warren, Judge. Suit by L. T. Mackey and C. J. Mackey, doing business under the firm name of Mackey Bros., against C. W. Bryce and C. W. Burgess. Judgment for plaintiffs against defendant Bryce, and for defendant Bryce against defendant Burgess, and defendant Burgess appeals.

B. Muse, Judge. Suit by the Dallas Trust & Savings Bank against Grafton S. Hunt and others to obtain construction of a will. From a decree,, defendant Hunt and others appeal.!

<p>Appeal from Bexar County Court; John II. Clark, Judge.</p> <p>Action by T. J. Davis against H. Wagner, Jr. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Suit by Thos. N. Dysart and another against Obed E. Dickinson, Jr. From a judgment for part of the relief demanded, both parties appeal.</p>

<p>I.Trial &wkey;>339(3) — Refusal to receive proper verdict for failure to find amount of damages for one plaintiff held erroneous.</p> <p>In view of Rev. St. arts. 1976-1978, 1980-1984, and 1994, relative to the form, reformation, etc., of verdicts and rendition of judgment thereon, the court, in an action for death of decedent’s widow, as administratrix, for the benefit of herself, minor son and daughter, erred in refusing to receive a verdict in proper form assessing the damages of each of the parties, because, contrary to instructions, it failed to find some amount for the daughter, and further instructing jury to reconsider; it being the court’s duty, if the verdict was not sup-</p> <p>ported by the facts, to set it aside and grant a new trial.</p> <p>2. Trial <&wkey;339(8) — Refusal to receive verdict modifying original, verdict, hold erroneous.</p> <p>Where the court, in an action for death by decedent’s widow, as administratrix, for the benefit of herself, minor son and daughter, refused to receive a verdict finding no amount for the daughter, contrary to instructions, and recommitted the case, whereupon the jury returned a verdict finding a small amount for her, which they deducted from the amount awarded plaintiff, the court erred in refusing to ■ receive the second verdict and again remanding ease to jury, even if erroneous, since the whole case, if the first verdict was rejected in toto, -was again before the jury, which could return an entirely new verdict, and, if only the issue as to the amount of damages due the daughter was recommitted, the second verdict should have been received as a finding on that issue, and the modification of the sum originally found for plaintiff treated as surplusage.</p> <p>3. Appeal and error <&wkey;l 175(1) — On reversal of judgment on third verdict because of court’s erroneous refusal to receive second verdict, judgment will not be rendered on latter verdict.</p> <p>In an action for death by decedent’s widow, as administratrix, for the benefit of herself, minor son and daughter, the court’s refusal to receive a second verdict modifying the original verdict, which failed to find the amount of damages due -the daughter, by awarding her a small sum which the jury deducted from the amount theretofore awarded plaintiff, was prejudicial to defendant, and therefore reversible error, where a third verdict assessed an additional sum as damages for the daughter, but the appellate court will not render judgment on the second verdict; Rev. St. art. 1626, authorizing the court,' on reversal, to render such judgment as the trial court should have rendered, being applicable only to cases in which both the law and. facts require but one judgment, and not to a judgment based on a jury’s findings.</p> <p>4. Appeal and error &wkey;>l 175(1) — On reversing judgment on modified verdict, because of erroneous refusal to receive former verdict, court will not render judgment on latter and thus cut off appeal.</p> <p>Since no appeal can be prosecuted from a-judgment not entered of record, nor from a verdict on which the trial court rendered no judgment, the court, on reversing a judgment entered on a third verdict because of the lower court’s error in refusing to receive a second verdict, will not render judgment on the latter, and thus cut off appellee’s right to appeal. Levy, J., dissenting in part.</p>

<p>Error from Cottle County Court; W. J. Ar-rington, Judge.</p> <p>Suit by Ernest Black against the Texas Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

H. Davidson, Judge. Trespass to try title by Frederick W. Yates against Annie T. Wier, E. M. Chester, and others. Judgment for plaintiff against all defendants, and for the defendant Wier against the defendant Chester on his warranty, and the defendants appeal.

Error from District Court, Menard County; N. T. Stubbs, Judge. Action by J. C. McClellan and others against Ludlow, Thomas & Devenish, in which E. F. Haley intervened. From judgment for E. F. Haley, intervener, as against plaintiffs, and for plaintiffs as against Lud-low, Thomas & Devenish, as a firm, and against O. G. Devenish, as an individual, plaintiffs bting error.

<p>1. Cancellation of instruments @=37(6)— Plaintiff’s pleading held to raise issue of fraud as against exceptions thereto.</p> <p>In an action to cancel a note given in payment for an interest in cattle, on the ground that the contract was induced by seller’s fraudulent representations as to bis interest, plaintiff’s allegations held such that it was error to sustain exceptions thereto.</p> <p>2. Chattel mortgages @=226 — Buyer is not obliged to discharge lien because .mentioned in terms of sale.</p> <p>Terms of a sale of an interest in cattle, reciting that a lien exists thereon, have no more binding force to compel the purchaser to discharge the lien than in a case ■where not mentioned at all, for the buyer is not obliged to discharge the lien in either case, although, when buyer is notified that there is an existing lien upon the property, he takes the mortgaged property cum onere.</p> <p>3. Pleading <©=3228 — General exceptions should not be sustained if cause of action is stated anywhere in the petition.</p> <p>Where a general exception alone is presented, if there appears anywhere in the petition cause of action stated, it should not be sustained; every reasonable intendment being indulged in favor of the petition.</p> <p>4. Cancellation of instruments <©=341 — Petition alleging fraud held to present fact issues for the jury, and hence not subject to general exceptions.</p> <p>Whether the contracts of sale .of an interest in cattle were uncertain and ambiguous in themselves, and whether the buyer seeking cancellation of purchase note was induced by the alleged fraudulent representations made to him, upon which he relied in making the purchase, held fact issues for the jury, and petition alleging such matters was not subject to general exceptions.</p> <p>5. Sales <§=4I, 263 — Caveat emptor not invariable rule; implied warranty of title where buyer is without notice of seller’s want of title.</p> <p>The common-law rule of caveat emptor, as applied to sales of personal property, has not always been followed in Texas courts, and it is well settled that an implied warranty will arise where the buyer has no notice of seller’s want of title.</p> <p>6. Sales <§=39 — A seller inducing sale by fraudulent representations of absence of lien, or refusing to raise an existing lien, is liable for fraud.</p> <p>Where a sale of personal property is made upon the false representations to buyer that there is no lien thereon, or, where there was one existing on it, and the seller does not raise it, the seller is nevertheless liable on his fraud, the same as a warrantor or guarantor of title would be.</p> <p>7. Evidence @=433(8), 434(11) — Rule that unexpressed warranty may not be added to written contract has its exception where omission by accideftt, mistake, or fraud.</p> <p>The rule that, where a contract is in writing, and purports to set forth all the terms, no oral testimony is admissible to add to such contract a warranty of property sold, has its exceptions in cases where such warranty was omitted by accident, mistake, or fraud.</p> <p>8. Sales <g=53(3) — Whether seller’s representation as to indebtedness was inducing cause of sale held for jury.</p> <p>In buyer’s action to cancel his note given in payment for an interest in cattle upon which there was a lien, the contract stipulating that the seller “is not a party either to said indebtedness or said lien,” hold that bill of sale showed no express or implied assumption of the indebtedness by buyer, and that the pleadings were broad enough to submit au issue as to personal agreement that the seller was to discharge it, and that, if such representation as to indebtedness was the inducing cause, then the allegations and the terms of the instrument themselves required the submission of such issue to the jury.</p> <p>9. Contracts <§=154 — Should be reasonably construed.</p> <p>The primary rule for construing contracts is to ascertain, if possible, and give effect to the parties’ real, true, mutual understanding and intention, and to give a reasonable, rather than a forced, construction where possible, that one most equitable to the parties, and not one giving an unreasonable advantage, a construction that evolves the more reasonable and probable contract, rather than one leading to unfair and absurd construction and result.</p> <p>10. Pleading @=428(3)— Petition for canceling sale note, though subject to criticism, held sufficient in its allegations of fraud to admit proof.</p> <p>Petition in buyer’s action to cancel purchase note held to set up sufficiently allegations of fraud in seller’s procuring of the sale, through representations of his interest, and grounds for recovery therefor sufficient to let in the proof, although somewhat subject to criticism, and not carefully and tersely drawn.</p>

<p>Appeal and error @=578(3)— Order sustaining exception to petition not appealable.</p> <p>No appeal lies from an order sustaining general exceptions to the petition.</p>

L. Brachfield, Judge. Action By Mrs. H, I-I. Carter and husband-against J. L. Lancaster and another, receivers. Judgment for plaintiffs, and defendants appeal. It .appears from testimony in the redord that Haden Oabbiness, 16 years old, son of appellee Mrs. H. H. Garter, was shot in the-back and killed by Joe Phillips, on the night of August 29, 1920, in the yards of the railway companies in Mineóla.

Suit by George B. Taliaferro, executor of the estate of Jake Wolf, deceased, against O. C. Robitzsch & Son and another. Judgment for plaintiff, and defendants appeal.

Action by A. E. Sherley against B. L. Sherley and. by B. L. Sherley against A. E. Sherley and others. Motion by plaintiff A. E. Sherley to amend judgment in her favor in the first action consolidated with last-named action. Motion granted, and defendant B. L. Sherley appeals.

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by Dr. K. Von Schoeeb against the Herald News Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Waters and water courses <@=>254 — Contract excusing defendants from liability for failure to furnish water construed.</p> <p>Under contract relieving defendants from liability for failure to furnish plaintiff with water for irrigation purposes if “due to some act of God or something over which parties -of the first part (defendants) have no control,” the “something over wtich”' defendants “have no control” must be something similar to an act of God over which no human being could exercise control.</p> <p>2. Waters and water courses <@=>254 — Power company’s failure to furnish power held not to have excused defendants’ failure to furnish plaintiff with water.</p> <p>Defendants, who had contracted to supply plaintiff with water for irrigation purposes under contract absolving them from liability for failure to furnish water “if the failure is due to some act of God or sometliing oyer which parties of the first part [defendants] have no control,” held liable for failure to supply plaintiff with water, though inability to so do was due to failure of electric power company, over which the defendants had no control, to furnish defendants with power wherewith to run their pumps, where defendants did not require power company to give bond to insure supply of power and -did not by mandamus seek to require the company to furnish them power.</p>

<p>Appeal from District Court, Upshur County; J. B. Warren, Judge.</p> <p>Suit by William Henry Ford against the St. Louis Southwestern Bailway Company of Texas. Verdict and judgment for plaintiff, and defendant appeals.</p>

Suit by J. R. Beauchamp and others against C. J. Zellmer and others. From a judgment of the Court of Civil Appeals (227 5. W. 965), affirming a judgment of the district court for defendants, plaintiffs bring error.

Suit by Wright Reed and wife against Erancis A. Lutcher and others to recover title and possession to land. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (224 S. W. 540), and defendants bring error.

<p>Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.</p> <p>G. J. Condra was convicted of negligent homicide, and he appeals.</p>

<p>Appeal from District Court, Llano County; J. H. McLean, Judge.</p> <p>I. B. Wooten was convicted of perjury, and appeals.</p>

<p>(.Weapons <§=>6 — Momentary possession where facts negative violation of law not denounced.</p> <p>The provisions of Pen. Code 1911, art. 475, denouncing the offense of unlawfully carrying firearms, were not passed for the purpose of punishing one who had momentary possession of a pistol where the facts negative the intention to violate the law.</p> <p>2. Weapons <§=>17(4)— Conviction for carrying pistol not supported by evidence.</p> <p>In a prosecution for unlawfully carrying a pistol, held, that the conviction was not supported by the evidence.</p>

Original ex parte application for writ of habeas corpus by Doc Mitcbum. Application denied, and applicant remanded to custody of sheriff.

<p>Intoxicating liquors <§=»211 — Indictment charging unlawful possession must allege possession to have been for purpose of sale.</p> <p>Indictment charging the unlawful possession of intoxicating liquor mijst allege that the liquor was possessed for the purpose of sale under Acts 37th Leg. (1921) 1st Called Sess. c. 61.</p>

D. Harvey, Judge. Suit by R. B. George against L. D. Stark. From judgment for plaintiff for part of relief prayed for, defendant appeals, and plaintiff files cross-assignments.

<p>Appeal from District Court, Lamar County ; Ben H. Denton, Judge.</p> <p>Hart Chewning was convicted of incest, and he appeals.</p>

<p>Appeal from District Court, Bell County; M. B. Blair, Judge.</p> <p>Suit by J. D. Sugg against the Dallas Land & Loan Company and others. Judg'ment for plaintiff, and defendants appeal.</p>

<p>Appeal and error @=>80(6)— Judgment failing to find amount defendant should recover over from his codefendant on a note held not final and appealable.</p> <p>In an action on a note, in which K., a defendant, pleaded that he was not liable, and in case of judgment against him asked for judgment against one of his codefendants for the amount he might have to pay, a judgment against defendants on the note, with no determination as to K.’s rights against his code-fendant, is not a final judgment, so as to give the appellate court jurisdiction of an appeal therefrom.</p>

<p>Appeal from' El Paso County Court at Law; J. M. Deaver, Judge.</p> <p>Suit by the Cananea Consolidated Copper Company, S. A., and others against C. H. Lawrence and others. Judgment for plaintiffs against defendant named, and he appeals.</p>

<p>Appeal from District Court, Hunt County; Wm. Pierson, Judge.</p> <p>Suit by W. F. Norman against the Stark Grain & Elevator Company. Judgment for defendant, and plaintiff appeals.</p>

<p>I.Appeal and error &wkey;>IOOI(l) — Finding on special issues supported by evidence not disturbed.</p> <p>Finding of the jury on special issues will not be disturbed on appeal, where supported by evidence.</p> <p>2. Appeal and error <&wkey;996 — That different conclusion might have been reached from evidence will not authorize reversal.</p> <p>The fact that there was other evidence from which a different conclusion could have been reached will not authorize the appellate court to substitute such conclusion for the jury’s verdict, the evidence being broad enough to justify an honest difference of opinion in the minds of reasonable men.</p> <p>3. Negligence <&wkey;>27 — Seller of ammonia not relieved of liability for injuries to purchaser’s employee by employer’s failure to examine consignment.</p> <p>_A wholesale drug company, which delivered an improperly filled and corked- bottle of concentrated ammonia to a retail drug store, where fumes escaped from it while, being handled by an inexperienced employee, was not relieved of its liability for injuries to the latter by his employer’s failure to examine the consignment, of which the bottle was a part, to ascertain whether the company had discharged its duty incident to filling an order for an article known to be inherently dangerous.</p> <p>4. Negligence &wkey;»140 — Evidence held not to raise issue of employer’s negligence as cause of clerk’s injuries by ammonia fumes.</p> <p>In an action against a wholesale drug company for injuries to a drug clerk from the escape of ammonia fumes from an improperly filled and corked bottle of concentrated ammonia, where the evidence did not disclose who received the consignment, including the bottle, or that plaintiff’s employer knew of the negligent bottling, the court properly refused to submit the issue' as to the employer’s liability for failure to examine the consignment before permitting his employee to handle the bottle.</p> <p>5.. Negligence <&wkey;27 — Seller of dangerous article must use ordinary care to protect purchaser’s employees.</p> <p>A wholesale drug company, which delivered a bottle of. concentrated ammonia to a retail drug store, owed a legal duty, not only to the general public, but to a clerk in the employ of the purchaser, who was not a pharmacist and whose eyes were injured by the escape of fumes from the bottle resulting proximately from the fact that the bottle was improperly filled and insecurely corked.</p> <p>6. Trial <&wkey;351 (2) — Judgment for plaintiff not equivalent to finding of negligence in particulars not included in plaintiff’s requests.</p> <p>The entry of a judgment for plaintiff is not equivalent to a finding that defendant was negligent as to matters presented by the pleading and proof, but not submitted to the jury because no request was made therefor by defendant as provided by Rev. St. 1911, art. 1985, where plaiptiff failed to request the submission of such issues, thereby abandoning them by acquiescence in the theory of the case as submitted by the court.</p>

R. Chapman, Judge. Action by the City of Stamford against H. C. Burt and others. From judgment dismissing a counterclaim, the named defendant and another appeal.

I. Gamewell, Special Judge. Proceeding by Robert F. Green and others against the Millers’ Indemnity Underwriters before the Industrial Accident Board for an award. Case transferred to the district court, from whose judgment, awarding Robert F. Green and wife compensation, the Millers’ Indemnity Underwriters appeals.

Mandamus by the County of Navarro to compel J. M. Tullos, County Auditor, and another to issue and countersign a warrant and to audit books. Judgment for defendants, and plaintiff appeals.

<p>Appeal from District Court, Washington County; R. J. Alexander, Judge.</p> <p>Suit by Albert Joswiak against Mike Jos-wiak, in which Mrs. Antonio Joswiak intervened. Prom an adverse judgment, the in-tervener appeals.</p>

Error from District Court, Yoakum County ; Joe J. McGowan, Special Judge. Suit by J. F. Merritt and wife against M. Whitley, in which the Security State Bank intervened. Judgment for plaintiffs, and in-tervener brings error.

Suit by Margaret Murray against the Western Indemnity Company and others, to recover compensatory damages for wrongful death of plaintiff’s husband. Judgment for plaintiff was reformed by the Court of Civil Appeals (208 S. W. 696); and defendant named brings error.

<p>Appeal from Shackelford County Courts Richard Dyess, Judge.</p> <p>R. B. Hightower was convicted of burning seed cotton, and he appeals.</p>

A. Hill, Judge. Action of trespass to try title by Bettie McCutcheon and another against M. S. Bradford and another. From judgment for defendant J. L. Erwin and for plaintiffs against defendant Bradford, he appeals.

Error from District Court, Deaf Smith County; Reese Tatum, Judge. Suit by J. R. Moseley and another against B. G. Puntney and another. Judgment for plaintiffs, and the named defendant brings error.

<p>Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge. Charlie Daines was convicted of theft of property of less than $50 in value, and appeals.</p>

<p>Appeal from District Court, Titus County; R. T. Wilkinson, Judge. J. W. Brewer was convicted of burglary, and be appeals.</p>

<p>Appeal from District Court, Titus County; R. T. Wilkinson, Judge. John Counts was convicted of the unlawful manufacture of intoxicating liquor, and he appeals.</p>