Volume 239 — South Western Reporter

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p>

<p>Appeal from Austin County Court; W. X. Hill, Judge.</p> <p>Action by H. Wittenberg against John Barton Payne, Agent. From judgment for plaintiff and C. E. Shaft, receiver, defendant appeals.</p>

<p>Appeal from District. Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Action by George A. Wells against O. J. Blomstrom and others. Judgment ior plaintiff, and’defendants appeal.</p>

<p>Appeal from District Court, Dallas County ; W. E. Whitehurst, Judge.</p> <p>Action by Bernard Goodman against the Citizens’ State Bank of Toyah, Tex., and another. Prom judgment overruling the named defendant’s plea of privilege, it appeals.</p>

B\ Whitehurst, Judge. Action by Louis Greenberg and another against the Citizens’ State Bank of Toyah, Tex., and another. Prom judgment overruling the named defendant’s plea of privilege, it appeals.

<p>1. Insurance <©=>130(6) — Acceptance of application without issuance of policy completes ■ contract.</p> <p>Though the mere application for insurance is not a contract, but merely a proposition for a contract, the acceptance thereof by the company makes the contract complete without the issuance of the policy, unless the application provides otherwise.</p> <p>2. Insurance <©=>131 (I) — Contract may be by parol.</p> <p>A contract of insurance may be by parol, in the absence of statutory requirement or other positive regulation to the contrary.</p> <p>3. Insurance <©=>130(4) — Collection and retention of premium without notice of rejection justifies assumption application was accepted.</p> <p>When an applicant for insurance had paid the premium to the agent of the company authorized to receive it, and the company received its portion of the premium before acting on the application, and had assumed the duty of returning the premium on a rejection of the application, and the applicant had done everything required of him, and had received no notice of adverse action on his application or cause for it, he could assume after several months that the company had accepted his application.</p> <p>4. Insurance <©=>95 — Company charged with knowledge premium had not been returned by agent.</p> <p>An insurance company is charged with knowledge that lfs agent, who was authorized to collect the first premium on applications taken by him, had not returned to the applicant the premium paid him on an application which the company subsequently rejected.</p> <p>5. Insurance <©=>668(3) — Facts held to take to the jury issue of company’s knowledge that applicant believed his application was accepted.</p> <p>Knowledge by an insurance company that no formal notice of rejection had been sent to an applicant for insurance, and that the premium paid had not been returned to him, held sufficient to take to the jury the issue of the company’s knowledge that insured believed his application had been accepted.</p> <p>6. Estoppel <©=>95 — Created by silence of party owing a duty to speak.</p> <p>Silence has the effect to estop a party where under the circumstances it is his duty to speak, and where that silence misled the other party to his injury.</p> <p>7. Insurance <©=>668(15)— Facts held to take to the jiiry the issue of estoppel to deny acceptance of application.</p> <p>Proof that an application for insurance has been received by the company with a medical examiner’s report approving the risk, that the first premium had been paid to the company’s agent and returned by him, and that no notice of rejection of the application had been sent to insured held sufficient to take to the jury the issue whether the insurance company was estopped after the death of the insured to- deny that it had accepted the application^</p> <p>8. Action <©=>50(9) — Not misjoinder to sue company and agent on contract not represented by policy.</p> <p>Where an application for life insurance had been made and premium paid to the soliciting agent, and no notice of rejection of the application had been sent to insured, there was no misjoinder of parties or causes of action in suing the insurance company and its agent, both of whom had received their portions of the premium, to establish liability on the ground of estoppel to deny the acceptance of the application.</p> <p>9. Action <®=>45(l) — Rule against misjoinder should be construed against that of multiplicity of suits.</p> <p>The rule forbidding misjoinder of actions É is. one of convenience, and should be construed • with the broader rule for the avoidance of multiplicity of suits.</p> <p>10. Insurance <©=>602 — Statutory penalty applies, though no written policy issued.</p> <p>The statutory penalty for refusal to pay the amount of insurance applies to refusal to pay a valid claim for such insurance, although no written policy had been issued and delivered.</p> <p>11. Insurance <©=>129 — Agent held authorized to promise return of premium after application was not accepted.</p> <p>A soliciting agent of a life insurance company, who was expressly authorized to receive payment of the first premium and retain his commission therefrom before remitting to company, had implied authority, in collecting the premium before the application was acted upon by the company, to promise that the premium would be returned if the application was rejected.</p> <p>12. Insurance <©=>629(1) — Pleadings held to allege' estoppel to deny acceptance of application.</p> <p>Pleadings in an action on a contract for life insurance for which no policy was ever issued, alleging payment of the premium and retention thereof by the company without notice of rejection of the application, held to state acts and omissions relied upon as constituting equitable estoppel to deny acceptance of the application.</p> <p>13. Trial <§=>352(1) — Requiring answers to special interrogatory only if previous one was answered afiirmatively is proper form.</p> <p>It was not erroneous in form to submit to the jury a second special issue, with directions to answer it only if they answered the first issue submitted in the affirmative, -where there would have been no necessity for an answer to the second issue if the first had been answered in the negative.</p> <p>14. Trial <§=234(1) — Charge held to exclude portion of conversation as to the defendant against whom it was not admissible.</p> <p>In an action against a life insurance company and its agent on a contract of insurance for which no policy was ever issued, where evidence of a conversation between applicant and the agent was admitted, all of which was competent against the agent, but some of which related to matters outside the scope of his authority, a charge that any statement by the agent differing from the written application and not in compliance with the agent’s contract, was not evidence against the insurance company was sufficient to exclude the objectionable portion of the conversation as to the company.</p> <p>15. Appeal and error <§=1050 (0 — Testimony agent was writing life insurance at different times for different companies held not prejudicial.</p> <p>In an action against a life insurance company and its agent testimony that the agent was writing life insurance for another company and later for the defendant company, if immaterial, was not prejudicial to defendant, which had taken over the assets and assumed the liabilities of the other company and continued the agent as its agent.</p> <p>16. Appeal and error <§=1050(1)— Evidence of telegram by insurance company guaranteeing agent’s drafts held not prejudicial.</p> <p>In an action against a life insurance company involving estoppel to deny acceptance of an application, defendant was not prejudiced by evidence of telegrams from its vice president to a bank, guaranteeing against loss on account of drafts by the agent who had received and retained applicant’s first premium.</p> <p>17. Insurance <§=664 — Testimony of medical examiners held admissible against company on issue of estoppel.</p> <p>In an action on a life insurance contract involving the issue of estoppel of the company to deny acceptance of the application of the insured, testimony by company’s medical examiners that they had unqualifiedly recommended the risk, which merely confirmed the report they made to the company, was admissible as tending to show that the applicant was led to believe his application had been accepted.</p>

<p>Appeal from District Court, Coleman County; J. O. Woodward, Judge.</p> <p>Action by G. D. Hines and others against the Gulf, Colorado & Santa Fé Railway Company. From judgment for plaintiffs, defendant appeals.</p>

E. Ashe, Judge. Action by Wm. L. Foley, Inc., against T. J. Ewing, Jr., and others, executors and trustees of the estate of George H. Hermann, deceased. Judgment for plaintiff, and defendants appeal.

<p>Appeal from District Court, Collin County.; P. E. Wilcox, Judge.</p> <p>Suit by A. C. Ray against Joe Burger. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Injunction <§⅛»149 — 'Where defendant was required to furnish gas under a contract it sought to forfeit, the court could order payment without prejudice to parties’ claims.</p> <p>Where plaintiff procured a temporary injunction against ■ defendant’s declaring forfeited for plaintiff’s breach a contract to furnish gas, and a bond was given and money to pay for the. gas required to be deposited in a bank, upon a showing of need of capital by the defendant, the court could properly order the money deposited paid to the defendant without prejudice to the rights or claims of either party.</p> <p>2. Injunction <©=>149 — Order for payment to gas company of money deposited in court proper so as not to inconvenience the public pending litigation.</p> <p>Where plaintiff, furnishing gas to the public, obtained a temporary injunction against defendant’s declaring the contract to furnish gas forfeited and compelling the defendant to furnish gas, defendant might have an order for payment to it of money deposited in a bank to pay for the gas upon showing of want of capital, for defendant’s remedy was not limited to obtaining a dissolution of the injunction, particularly since that would inconvenience the public, which courts will not do, pending litigation.</p> <p>3. Injunction ¡§=149 — Ordering money paid for gas furnished by defendant pending injunction held not abuse of court’s discretion.</p> <p>Where plaintiff seeks specific performance of a contract to furnish gas, and defendant seeks its cancellation, and a temporary injunction required defendant to continue, furnishing gas, and an order required defendant to pay money therefor into a bank, a subsequent order that the bank pay the same to defendant, and that such should not be construed to effect the claims of the parties, held to preserve the parties’ rights and to be a proper exercise of discretion.</p>

O. Beard, Judge. Action by Ben E. Pitch against J. L. Lancaster and others, receivers. Judgment for plaintiff, and defendants appeal. The action was brought by the appellee to recover damages for the loss of his right' leg, which was crushed by the movement of the train while he, in the discharge of his duties as rear brakeman on a freight train, was between two cars, attempting to uncouple them, in the yards at Cut Off Junction, La.

<p>Appeal from District Court, San Saba County; N. T. Stubbs, Judge.</p> <p>Action by R. G. Bement against W. S. Barrow and others. Judgment for plaintiff against defendant Barrow and another, and defendant Barrow appeals.</p>

Denton, Judge. Action by J. K. MeCraw against W. H. Robinson and others. Judgment for plaintiff in part and for defendants in part, and plaintiff appeals. This suit was filed on December 18, 1920, by appellant, against E. C. Summers, C. C. Summers, and C. L. Gee, to recover the amount of two promissory notes alleged to be secured by a vendor’s lien on certain land described in the petition, and foreclosure of the lien being prayed for.

E. Singleton, Judge. Suit by Harry C. Warne against the Guaranty State Bank of Colmesneil and others to set aside a judgment. Judgment for defendants, and plaintiff appeals.

Bishop, Judge. Suit by J. R. Wrather against J. S. Bolán, I. P. Lochridge, and others. From a judgment overruling the plea of privilege of I. P. Lochridge and others, defendants appeal.

<p>Appeal from Rockwall County Court; J. K. Wells, Judge.</p> <p>Action by F. J. McLendon against S. Armstrong. From judgment sustaining plea of privilege, plaintiff appeals.</p>

<p>1. Railroads <©=»5½, New Vol. 6A Key-No. Series — Government not liable for penalties.</p> <p>No action can be maintained against the United States Railroad Administration to enforce a penalty under Rev. St. art. 714, for injuries to live stock in transit.</p> <p>2. Appeal and error <&wkey;237(6), 268(1), 294(1) —Where no exception raised, sufficiency of evidence to.support verdict not inquired into on appeal.</p> <p>Where no exception is made to issues submitted to the jury, and no motion is made to set aside the findings, nor exceptions to the findings raised in a motion for new trial, the sufficiency of the evidence to sustain such findings cannot be inquired into on appeal.</p>

<p>Appeal from District Court, Howard County; W. P. Leslie, Judge.</p> <p>Suit by T. J. McKinney and wife against F. F. Gary. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Jefferson County; E. A. McDowell, Judge.</p> <p>Suit by the Lumbermen’s Indemnity Exchange and others against Mrs. Jules Vivier. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by Maria Wilkinson against the Herald 'News Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Error from District Court, Deaf -Smith County; Reese Tatum, Judge.</p> <p>Action by Yern Witherspoon against W. H. Terry and others. Judgment for the plaintiff, and defendants bring error.</p>

B. Hopkins, Judge. Action by W. B. Myers against the Texas Land & Development Company and another. From a-judgment overruling the plea of privilege filed by the named defendant, that defendant appeals.

Error from District Court, Wharton County; M. S. Munson, Judge. Action by G. Sackheim against F. J. Har-dey and others. Judgment for defendants dismissing the suit, and, from an order overruling plaintiff’s motion to reinstate, plaintiff brings error.

<p>Appeal from District Court, Coleman County; J. O. Woodward, Judge.</p> <p>Suit by M. A. Bletsch against O. B. Manes and others. From judgment for plaintiff, defendants appeal.</p>

<p>I.Appeal and error ¾=½>1175(3) — Judgment for plaintiff in suit to rescind must be reversed where proper remedy was suit for damages.</p> <p>If the proper remedy for fraudulent representations inducing the execution of a contract is a suit for damages with affirmance of ■ the contract, a judgment for plaintiff in a suit to rescind the contract must be reversed without further proceeding.</p> <p>2. Sales <&wkey;l23 — Buyer, unable to restore status, cannot rescind.</p> <p>A buyer, who has placed himself or the property sold in such position as to be unable to restore the status, cannot rescind.</p> <p>3. Sales &wkey;>l34 — On seller’s refusal to accept tender back, buyer may sell goods for seller’s account. <</p> <p>Where the seller refuses to receive back the goods sold, the buyer may sell the goods for the seller’s account for the best price obtainable, and retain enough of the proceeds to reimburse him for necessary expenses, holding the balance subject to the seller’s demand.</p> <p>4. Trial &wkey;s295 (10) — Charge held not on weight of evidence or misleading.</p> <p>In a suit to rescind a sale of diseased cattle a portion of a charge to find for plaintiff if defendants, when they represented that the cattle were free from disease, if they did so, knew it was not true, held not on the weight of the evidence, or misleading in connection with the whole charge.</p> <p>5. Appeal and error <&wkey;l00l (!) — 'Verdict supported by evidence upheld.</p> <p>Where the verdict is supported by evidence, the judgment will be affirmed, in the absence of prejudicial error, as provided in rule 62a (149 5. W. x).</p> <p>6. Sales <&wkey;39ll/2, New, vol. I4A Key-No. Series-One fraudulently induced to purchase diseased cattle has lien for purchase price.</p> <p>One induced to purchase diseased cattle by fraudulent representations has a lien on the cattle for the purchase price.</p> <p>7. Sales (&wkey;41— Caveat emptor inapplicable to sale induced by reliance on fraudulent representations.</p> <p>The doctrine of caveat emptor is inapplicable to a purchase of diseased cattle in reliance on fraudulent representations of the seller, of whom the strietest good faith is required; the buyer being responsible only for foolish mistakes or wrong conclusions resulting from trusting to his own judgment.</p> <p>8. Cancellation of instruments &wkey;>24(l) — Where seller is guiity of fraud, buyer need not tender back property before suing to rescind.</p> <p>Where the seller is guilty of fraud, the buyer need not tender back the property before suing to rescind the contract.</p> <p>9. Judgment &wkey;>252(5) — Appropriate relief may be granted under prayer for general relief.</p> <p>Courts may grant appropriate relief under a prayer for general relief.</p> <p>10. Sales <&wkey;l30(4) — On seller’s refusal to accept tender back, buyer may recover expenses and value of services in caring for property.</p> <p>Where sellers of diseased cattle fraudulently represented as sound refused to receive them back when tendered by tbe buyer, the latter eould recover expenses and value of services in caring for them; such damages necessarily and naturally flowing from the sellers’ acts.</p> <p>11. Sales <&wkey;l30(3!/2) — Value of services in caring for diseased cattle after seller’s refusal to accept buyer’s tencTer held for jury.</p> <p>The benefit or value of services rendered by a buyer in caring for diseased cattle after the seller’s refusal to accept a tender back held for the jury.</p> <p>12. Sales <&wkey;l30(4) — Amount recoverable on rescission stated.</p> <p>In a suit to rescind a sale of diseased cattle fraudulently represented to be sound, a charge that plaintiff could recover the amount paid for the cattle with interest, less the amount received by him on resale after defendant’s refusal to receive them back, plus reasonable expenses for pasturing and caring for them and the value of his own time, with interest until such sale, held correct.</p> <p>13. Trial &wkey;>352(4) — -Failure to submit issues not authorized by evidence or pleadings not erroneous.</p> <p>It is not error to fail or refuse to submit issues not authorized by the evidence or pleadings.</p> <p>14. Sales &wkey;>l30(4) — Damages for fraudulent sale of herd of diseased cattle not limited to those showing signs of disease at time of sale.</p> <p>In a suit to rescind a sale of diseased cattle, fraudulently represented to be sound, the court properly refused to limit plaintiff’s damages to animals which showed signs of disease at the time of the sale.</p> <p>15. Sales <&wkey;38(2) — False representation need not have been made with knowledge of falsity or with reckless disregard of truth.</p> <p>To rescind a sale of diseased cattle for fraudulent representations as to their soundness and health, it is not necessary that defendants’ statement was made with knowledge of its falsity or with reckless disregard for the truth; it being sufficient that the cattle were diseased when represented to be sound, and that plaintiff relied on such representation.</p> <p>16. Sales &wkey;>38(7) — That buyer might have discovered falsity of statement is ho defense.</p> <p>A seller cannot defend against a false statement made by way of inducement on the ground that the purchaser might have ascertained its falsity by inspection and inquiry.</p> <p>17. Appeal and error <&wkey;l064(4) — Use of word warranty, instead of misrepresentation or fraud in special charge, held harmless. '</p> <p>In a suit to rescind a sale of diseased cattle for fraudulent representations, a special charge that it was not necessary that the seller knew the cattle Were unsound to make him liable on a warranty of soundness was 'harmless, despite the use of the word “warranty,” instead of “misrepresentation” or “fraud”; a judgment for plaintiff being sustainable on the manifest fraud in fact independently of the supposed warranty.'</p> <p>18. Sales <&wkey;!3(J(l) — Whether suit to rescind was in tort or on warranty held immaterial, where plaintiff’s tender of property purchased was refused.</p> <p>Whether a suit to rescind a sale of diseased cattle on the ground of fraudulent representations and to recover the purchase price and expenses for caring for them on the seller’s refusal to receive them back be an action in tort or on the warranty for the fraud inducing the sale is immaterial; the measure of damages being the same whether or not the sale was rescinded.</p> <p>19. Trial <&wkey;260(l) — Refusal of charges embraced in charges given is harmless.</p> <p>Refusal of special charges fairly embraced in the court’s general charge and special issues submitted at appellee’s request was harmless.</p> <p>20. Damages <&wkey;7l — Attorney’s fees recoverable only as exemplary damages or penalties for maiieious act or willful fraud.</p> <p>Attorney’s fees, which are not ordinarily recoverable in cases of tort growing out of breaches of contract or warranties, may be recovered as exemplary damages or penalties only where the wrong consists of a malicious act or the perpetration of a willful fraud.</p>

<p>1. Partition <©=58 — Deed held ratified if acts subsequent to execution showed intention to revoke. •</p> <p>If the acts of a party to a partition deed after he had signed and acknowledged it indicated a desire to revoke the deed, he after-wards fully ratified the deed by agreeing- to have the lines surveyed, and assisting in making the surveys without objection or protest.</p> <p>2⅛ Partition <©=»8 — Party delivering deed to other party had no power to revoke.</p> <p>One delivering a partition deed which he had signed and acknowledged to the other party had no power to revoke it.</p> <p>3. Trespass to try title 3=335 (l) — Evidence of ratification of deed admissible to meet claim of revocation though ratification not pleaded.</p> <p>In trespass to try title by one claiming under a partition deed, parol testimony tending to show defendant’s ratification of the deed was admissible to meet defendant’s testimony that he had revoked it, though ratification was not pleaded; ratification being no part of the title, but merely a defense to the claim of revocation.</p> <p>4. Adverse possession 3=360(3) — Suit based on partition deed not barred when brought three years after execution of deed.</p> <p>Where plaintiff, who was the child of defendant’s deceased wife, had ever since her mother’s death claimed one-half of the community land, and defendant never set up any adverse claim, but recognized plaintiff’s right, and in 1917 executed a partition deed in recognition of such right, a suit in trespass to try title instituted in 1920 was not barred by limitations.</p>

<p>Master and servant <®=>385(I3) — Loss of fingers held not compensable as loss of hand.</p> <p>A servant who lost two joints of each of three fingers and part of the first joint of the first finger was not entitled to compensation based upon the loss of the use of the hand, but only specific compensation for the loss of the fingers or portions thereof under the Workmen’s Compensation Act, § 12 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 21).</p>

<p>1. Trial ¡§=5350(4)— Error to refuse issue whether defendant contracted to pay commission.</p> <p>Where in an action for broker’s commission whether defendant contracted to pay a commission was under the pleadings and evidence a material issue under Rev. St. 1911, arts. 1971, 1985, it was error to refuse defendant’s requested issue, “Did defendant contract to pay a commission for the sale or the reasonable value of the service.”</p> <p>2. Trial ¡§=5350 (4) — Error to refuse issue as to reasonable value of broker’s services.</p> <p>In an action for broker’s commissions, refusal of requested issue that if defendant agreed to pay the reasonable value of the services, “then what amount do you find from the evidence would be reasonable value thereof,” was error.</p>

B. Terrell, Judge. Petition for certiorari by S. A. Watts and others against Buena G. Wofford and others to review allowance of claim against estate of Taylor Whitsett. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from District Court, Fort Bend County; M. S. Munson, Judge.</p> <p>Action by Roy B. Nichols and another against J. Sr Tarkington. From judgment for plaintiffs, defendant appeals.</p>

R. Warren, Judge. Suit by Jo. J. White against the W. D. Sessums Motor Company. Judgment for plaintiff, and defendant appeals. Appellants, W. D. Sessums and B. W. Crane, both of whom resided in Longview, Gregg county, as partners under the name “W. D. Sessums Motor Company,” engaged in the business of selling automobiles at Tyler, Smith county.

<p>Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.</p> <p>Suit by W. W. Oskey against A; J. Campbell. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County ; Kenneth Toree, Judge.</p> <p>Suit by Catherine M. Staten and others against W. T. Harris and others. From a judgment dissolving temporary writ of injunction, plaintiffs appeal.</p>

<p>Appeal from Hopkins County Court; Homer L. Pharr, Judge.</p> <p>Suit by the St. Louis Southwestern Railway Company of Texas against the Missouri, Kansas & Texas Railway Company of Texas .and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Highways <®=>184(2)— Evidence in a suit for injuries in a collision held to show that the proximate cause was the shying of plaintiff’s mules, not defendant’s alleged negligence as to lights on his automobile.</p> <p>In a suit for personal injuries sustained in a collision with defendant’s auto-mobile and plaintiff’s buggy drawn by a team of mules, evidence hold to show that the proximate cause was the shying of the mules due to a passing train, and not defendant’s failure to have lightp on the automobile, the sole negligence alleged.</p> <p>2. Trial <§=>351 (5) — Failure to submit issues in collision case as to whether defendant’s automobile had lights held error.</p> <p>Where in a suit for injuries in a collision between a buggy wherein plaintiff was driving and defendant’s automobile when her mules shied because of a passing train, and the only negligence alleged was defendant’s failure to have lights on his automobile, it was error to fail to submit the issues as to operation of the automobile without lights and as to whether the mules took fright and suddenly shied and as to whether such shying was the proximate cause of the collision, though negligence and contributory negligence were in a general way presented by special issues.</p> <p>3. Damages <S=j43 — Expenses for tours to regain health not a proper measure of damages.</p> <p>Damages in personal actions cannot be measured by the amount paid out for tours to regain health.</p>

<p>t. Judges <§=40 — Statute held to violate constitutional right to agree on person to try case when judge was disqualified.</p> <p>Const, art. 5, § 11, expressly provides that when the judge of a district court is disqualified to hear and determine a ease, the parties may by consent appoint a proper person to try it, and the Legislature was without authority to deny such right by Yernon’s Ann. Civ. St. :Supp. 1918, art. 1676.</p> <p>.2. Insurance <§=827 — Where insurer admitted liability if insured did not die by his own hands, the jury’s finding that he did not so die warranted judgment against insurer.</p> <p>In an action on a beneficiary certificate, where the defendant society admitted that plaintiff was entitled to recover if the assured did not die by his own hands or act, the finding •of the jury that he did not die that way warranted a judgment against the defendant, notwithstanding the jury also found that assured’s death was not due to accident, and did not •find its cause.</p> <p>.3. Insurance @=819(4)— Evidence held not to sustain finding that insured did not die by his own hands.</p> <p>. In an action upon a life beneficiary certificate, evidence held not to sustain the jury’s ■finding that the insured did not come to his death as the result of his own hands or act.</p> <p>4. Appeal and error @=837(11) — Evidence @= 527 — Physician’s opinion that insured could not have committed suicide not competent; incompetent testimony is without probative force.</p> <p>In action on beneficial1 society certificate, defended on ground that deceased member committed suicide by hanging, where it appeared that he was found dead with his knees almost touching the floor, so that if he had straightened himself up he could have prevented death, the opinion testimony of a physician that he did not think a person in the position assured was found to be in “could force himself down and choke himself to death” was not competent as evidence to prove that assured’s death was not due to suicide; and hence such opinion could not be regarded as testimony entitled to probative force in the case.</p> <p>5. Insurance @=817(3), 819(4) — Presumption against suicide will not alone sustain a finding that assured did not commit suicide.</p> <p>In an action on a beneficiary certificate, the presumption against suicide merely places on the party asserting it the burden of proof, but has of itself no probative force, and the finding of the jury that the assured did not commit suicide cannot be supported on the presumption the law indulges against it.</p>

Action by Louise Smith and another against Joe Trahan. Judgment for plaintiffs in the county court on appeal from a justice of the peace, and defendant appeals.

<p>Appeal from District Court, Dallas County; W. P. Whitehurst, Judge.</p> <p>Mandamus by C. L. Benson against Drey-fuss & Son and others. Prom judgment granting application for writ, defendants appeal.</p>

Cornell, Judge. Action by H. T. Odneal against George M. Brown, Howell Johnson, and others. The cause was dismissed as to defendant Johnson, and, from judgment for plaintiff against the remaining defendants, they appeal.

<p>1. Mines anti minerals <§=359 — Modifying contract between lessor and lessee after execution of original lease held to have incorporated therein consistent stipulations therewith.</p> <p>Where contract between lessor and lessee’s assignee expressly stated that it was executed to modify the previously executed lease and provided that as modified it should remain in effect “according to its original terms and conditions, unchanged in other respects,” the stipulations of previously executed lease consistent with the subsequently made contract, but not the inconsistent stipulations, were incorporated in the subsequent contract.</p> <p>2. Mines and minerals <§=>59 — A supplemental lease contract, an entire contract which could not he canceled as to portion of land around a single well.</p> <p>Where an oil lease providing for development for a ten-year period entitled lessor, on suspension of operations for a year, to cancel it except as to 2,000 acres in circular form around each producing well, and, on termination of the 10 years after producing wells were drilled, the parties by a supplemental contract incorporated consistent provisions of the original lease conveyed to lessee “to have and to hold * * * as long as oil is produced therefrom in paying quantities” the oil, gas, and other minerals in separate tracts which constituted a portion of land described in the original lease, provided for reconveyance to lessor of rights in the other portion, required lessee to exercise only reasonable diligence as to additional wells, and recited the consideration to be the sum of $5 paid by lessee and “royalties to be paid and the covenants to be kept,” and the producing wells drilled were so close together that 2,000 acres in circular form around each would result in areas overlapping, it was held, that the contract was an entire one, aqd, the consideration not being apportionable to a particular part of the acreage, lessee could not cancel the lease as to a 2,000-acre tract surrounding a single well.</p> <p>3. Contracts <§=>171 (I) — Whether contract is entire or severable depends on intention.</p> <p>Whether a contract is entire or severable depends primarily upon the intention of the parties determined by the ordinary rules of construction.</p>

<p>1. Evidence <§=>601(4) — Evidence held to show grass land damaged by fire had no established market value.</p> <p>In an action for damages to grass land by fire set out by sparks from a railroad engine, evidence held sufficient to show that there had been no sale of grass land of the kind involved in that vicinity at about the time of the fire and that there was no established market value.</p> <p>2. Evidence <§=>! 13(1) — Intrinsic value admissible where no market value.</p> <p>Where grass land damaged by fire had no established market value, its intrinsic value for the purposes for which it had been used was admissible.</p> <p>3. Evidence <§=>488, 568(4) — Testimony of stock farmers familiar with kind of grass land injured by fire held admissible and sufficient to establish intrinsic value.</p> <p>In an action for damages to grass land, from fire set by sparks from a railroad engine, testimony of plaintiff and another, both stock farmers, familiar with the kind and class of grass destroyed, held admissible and sufficient to establish the intrinsic value of the land for the purposes for which it had been used, the witnesses being qualified to testify.</p> <p>4. Railroads 482(2) — Degree of proof of origin of fire stated.</p> <p>In an action for damages from fire set by sparks from a railroad engine, it is not necessary that the evidence should exclude all possibility of another origin, but it is sufficient that all the facts and circumstances fairly warrant the conclusion that the fire did not originate from another cause.</p> <p>5. Railroads <§=>482(2) — Finding of origin of firs sustained.</p> <p>In an action against a railroad company, for damages to grass land by fire evidence held sufficient to warrant a finding that the fire was set by sparks from a passing engine.</p> <p>6. Appeal and error <§=>1062(1) — Issue as to whether fire was set out by one of defendant’s engines held harmless if too general.</p> <p>Submission of issue as to whether plaintiff’s grass was set on fire “by one of defendant’s locomotive engines” on or about a certain date, held' harmless, if erroneous as permitting the jury to find for plaintiff if the fire was set out .by any of defendant’s engines, where it was not charged that the fire was set by any particular engine, and ' the evidence showed that two engines passed the scene of the fire shortly before it was discovered.</p> <p>7. Appeal and error <§=>I064(I) — Trial <§=>215 —Giving general charge in addition to special issues held error and prejudicial.</p> <p>Giving general charges in addition to special issues is error and prejudicial where the general charge informs the jury what would be the result of their findings.</p> <p>8. Appeal and error <§=>882(12) — Error in giving general charge in addition to special issues held not invited.</p> <p>Where the court submitted the case on special issues, and in connection therewith erroneously charged the jury as to what their finding should be on facts set out in several paragraphs of a general charge, to which appellant objected, appellant, by ashing special charges with a view of correcting the several paragraphs of the general charge, did not invite the court’s error in giving such charge, where such special charges were presented aft-<cr the court had prepared his main charge.</p> <p>9. Appeal and error <§=>928(1) — In absence of contrary showing, appellate court must presume that statutory procedure was complied with.</p> <p>In the absence of an affirmative showing to the contrary, the court of appeals must presume that the court prepared his charge and submitted it to the parties, who then prepared <their objections thereto and their special charges, as contemplated by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 1973.</p> <p>19. Trial <§=>350(5) — No error in refusal of issues as to whether wind carrying sparks was unusually high.</p> <p>In an action for damages to grass land, from fire set by sparks from a railroad engine, where it was not alleged' or proved that the wind was so unusual as not to be anticipated, the court did not err in refusing to submit issues as to whether there was an unusually high and unprecedented wind blowing at the time of fire and whether such wind caused the sparks to set fire to the grass.</p> <p>On Motion for Rehearing.</p> <p>11. Trial <§=>280 — Objections to general charge held to go to the substance and point out errors of law.</p> <p>Objections to a general charge as placing a greater burden on defendant than the law requires, “in that it charges,” etc., and as indicating to the jury the result of their verdict from their answers to special issues, go to the substance of the general charge and point out errors of law.</p> <p>12. Appeal and error <§=>882(12) — Error in giving general charge not invited by requesting special charges to correct same after objections overruled.</p> <p>A party does not invite an error in giving a general charge in a case submitted on special issues, by requesting special charges to correct errors of law in the general. charge after objections thereto have been overruled.</p> <p>13. Trial <§=>423 — Error in giving general oharge not waived by requesting special charges curing defects after objections overruled.</p> <p>Where the trial judge, by overruling objections to a general charge in a case submitted on special issues, indicated its determination to give such charge in connection with such issues, appellant did not waive the error by submitting special charges curing defects of law in the charge given.</p>

<p>1. Brokers 3=388(2) — In a broker’s action for commission, evidence held to have raised a jury issue as to there being an agency contract.</p> <p>In a broker’s action for commission on the sale of a stock of merchandise, evidence held- to raise an issue as to whether there was any agreement of agency which should have been submitted to the jury.</p> <p>2. Brokers <0=340 — To entitle a broker to commissions he must show an agency contract.</p> <p>To entitle a broker to recover commissions for effecting a- sale he must show that he was employed by the owner or some one for him, and a mere volunteer or one without authority, in absence of ratification, is not entitled to commissions.</p> <p>3. Brokers @=340 — Implied contract by seller is sufficient for recovery of commissions.</p> <p>There need not be an express contract between the broker and seller to entitle the former to his commissions, for an implied contract is sufficient.</p>

<p>Appeal from Bell County Court; J. W. Sutton, Judge.</p> <p>Action by J. W. McDonald against King Huff and wife. Judgment for plaintiff, and defendants appeal.</p>

<p>Error from District Court, Brewster County; Jas. Cornell, Judge.</p> <p>Suit by A. M. Turney against B. W. Land-rum and H. G. Landrum. Judgment of dismissal as to last-named defendant and for plaintiff as against first-named defendant, and the latter brings error.</p>

<p>1. Venue &wkey;s8 — Action for fraudulent representations inducing default in payment properly brought in county where fraud was committed, though contract provided for payment in another county.</p> <p>An action against a vendor for fraudulent representations, inducing vendee’s default in payment of an installment at the time and place required' by the contract, was properly brought in the county where the fraud was committed, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 7, though the contract provided for payment in another county; the action being based on the wrong inducing the default, and not on the breach of contract.</p> <p>2. Vendor and purchaser <&wkey;95(2) — Vendor may waive right to forfeit contract for default in payment of installment.</p> <p>Vendor may waive his right to forfeit a contract on default in payment of an installment at the time and place stipulated.</p> <p>3. Fraud &wkey;>28 — Vendor’s fraudulent representations inducing default actionable.</p> <p>Fraudulent representations by vendor for the purpose of obtaining a forfeiture by deceiving vendee into the belief that payment of an installment at the place designated in the-contract was waived held to authorize a suit for damages resulting from forfeiture on ven-dee’s default.</p> <p>4. Pleading <&wkey;>! 11— Evitfence held sufficient on-plea of privilege to raise inference of injury from fraudulent representations.</p> <p>In an action against a vendor for fraudulent representations, inducing vendee’s default in payment of an installment of the purchase price at the time and place stipulated in the contract, which vendor thereupon forfeited, evidence as to plaintiff’s arrangements to pay-the amount due on the date fixed held sufficient on a plea of privilege to raise an inference of injury.</p>

<p>Carriers <§=»185(1)— Delivering carrier held liabie for shortage in interstate shipment on failure to show lawful excuse.</p> <p>Under U. S. Comp. St. § 8604dd, providing that, if a carrier fails or refuses to deliver goods on demand by the consignee when payment of charges and the bill of lading is offered, the burden is on the carrier to establish a lawful excuse, the last carrier in a series of carriers; on surrender of a bill of lading and payment of the charges by the consignee, was liable for loss of goods shipped, on failure to show a lawful- excuse, though the consignee did not show on which line of the several carriers the loss occurred, regardless of section 8604a, making the initial carrier liable.</p>

<p>Appeal from District Court, Donley County; Henry S. Bishop, Judge.</p> <p>Suit by W. B. Webb against C. C. Carter. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Brokers ⅞=>106 — Letters held admissible to show extent of authority to sell in action against principal for breach of contract.</p> <p>In an action for breach of a contract of sale, defendant’s letters to its broker cautioning the latter not to take more orders than defendant was able to fill were admissible to show the extent of the broker’s authority; it being plaintiff’s duty to ascertain the extent of that authority.</p> <p>2. Trial <§u»255 (4) — Evidence of agent’s authority to sell admissible as to all orders taken where no request to limit to orders not claimed ratified.</p> <p>In an action for breach of contract of sale, evidence showing the extent of an agent’s authority in taking orders, some of which were claimed to have been ratified, was admissible as to all; there being no request to limit the evidence to orders not claimed ratified.</p> <p>3. Brokers <3=>94 — Confirmation of sales by agent held subject to previous limitation of authority.</p> <p>Where the authority ' of a broker to sell honey was limited to the principal’s ability to obtain it, and orders taken without any unconditional promise of delivery were confirmed by the principal’s letters to the agent, the confirmation must be regarded as subject to the previous limitation of the agent’s authority.</p>

<p>Appeal from District Court, Scurry County; "W. P. Leslie, Judge.</p> <p>Suit between Mrs. N. M. Leslie and A. C. Leslie. Prom judgment of the court below, Mrs. N. M. Leslie appeals.</p>

B. Price, Judge. Action by H. O. Griesenbeck against J. C. Lundell. From judgment for plaintiff before justice, defendant appealed to the county court. Modified and affirmed, and defendant appeals.

<p>1. Payment <&wkey;82(3)— In absence of fraud, held that money voluntarily paid could not be recovered back.</p> <p>Where plaintiff gave defendant company an oil, gas, and mineral lease, and prior to its expiration, plaintiff and wife, by a mineral deed, granted to others a one-fourth undivided interest in and to the same minerals, grantees knowing of the lease, and the defendant, without knowledge of the deed, procured from plaintiffs a lease extension, and plaintiff paid one-fourth consideration therefor to the grantees in the mineral deed, and subsequently the defendant lessee paid such grantees for a ratification agreement and sought to recover the money, Aeldi that, no fraud being shown, the lessee was not entitled to recover back money voluntarily paid.</p> <p>2. Corporations <&wkey;4ld — Authority of em-’ ploye.e to make a voluntary payment for a corporation under instructions from its general superintendent not to be questioned by it.</p> <p>The authority of an employee to make a voluntary payment for a corporation to purchase something which vendors did not own, and could not sell, cannot be questioned by it where he did it under instructions from its general superintendent.</p> <p>3. Corporations <&wkey;5!3(4) — Authority to act for corporation not to be questioned where pleadings raise no issue with respect thereto.</p> <p>The authority of one who acted for a corporation, suing ^to avoid liability on account thereof, cannot be questioned by it where the pleadings raise no issue with respect thereto.</p>

Error from District Court, Deaf Smith County; Reese Tatum, Judge. ' Suit by J. K. Gray against C. S. McCurdy and others. Judgment in favor of plaintiff decreeing specific performance of a land sale contract, and against the defendant McCur-dy, who brings error. Judgment reversed, and rendered for plaintiff in error.

<p>Appeal and error <&wkey;>907(3) — Judgment overruling plea of privilege affirmed in absence of evidence and fundamental error.</p> <p>Judgment overruling plea of privilege will be affirmed, in the absence of statement of facts or bills of exception setting forth the evidence upon which the plea was overruled, and of fundamental error presented in the record; it being presumed that the evidence was sufficient to warrant the judgment.</p>

L. Manry, Judge. Suit by the Georgia Casualty Company against M. A. McClure, to set-aside a decision of the Industrial Accident Board. Judgment for defendant sustaining a decision of the Board, and allowing damages and attorney’s fee, and plaintiff! appeals.

<p>Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.</p> <p>Action by the Consolidated Oil Company of Texas against the Ranger Cisco Oil Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.</p> <p>Action by Martine Mondragon against Juan Mondragon and others. Prom an adverse judgment, plaintiff appeals.</p>

<p>t. Landlord and tenant <&wkey;246(l) — Landlord’s lien on animals held not to extend to cattle not furnished by landlord.</p> <p>Landlord’s lien, under Acts 34th Leg. (1915) c. 38 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5475), giving lessor a preference lien on “animals, tools, and other property furnished by the landlord to the tenant and to the crop raised on such rented premises,” held not to extend to lessee’s cattle which had not been furnished to him by lessor.</p> <p>2. Landlord and tenant ¡&wkey;246(l) — Lien given owners or lessees on animals for pasturage held not available to lessor as to lessee’s cattle.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5664, giving owners or lessees of pastures a lien on animals placed with them for pasturage, did not give lessor of pasturage land a lien on lessee’s cattle for amount of rent.</p> <p>3Í Landlord and tenant i&wkey;>246(l) — Lessor held not to have lien on lessee’s cattle under statute giving landlord lien on tenant’s property within leased buildings.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5490, giving landlord a preference lien upon “all the property of the tenant in such residence storehouse or other building,” lessor did not acquire a lien upon lessee’s cattle, the lien extending only to property owned by the tenant located within the leased improvements or ordinarily used therein.</p> <p>4. Constitutional law <&wkey;70(l) — Required to ascertain and enforce law as created by Legislature.</p> <p>The duty of the court is not to make the law by forced construction, but to ascertain and enforce the law as created by the Legislature.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Action by George Emmert, executor, against V. M. Donigan. Judgment for plaintiff, and defendant appeals.</p>

W. Beall, Judge. Suit by Byron B. Byrne against Earl Morrison and others and W. H. Neely and others. Judgment for the plaintiff against all defendants, and for the defendant W. H. Neely over against thé defendant Morrison and another on the cross-action, and the defendants Morrison and another appeal from the judgment on the cross-action.

H. Arnold, Judge. Suit by W. B. Keener against J. D. Smoot for brokers’ commission, in which C. J. Cleveland was also made a party defendant. Verdict and judgment against the defendant Smoot in favor of the plaintiff and the defendant Cleveland, giving each one-half of the commission, but deducting from the whole amount of the commissions a $100 attorney’s fee to the defendant Smoot for filing answer, and the defendant Cleveland appeals.

<p>Appeal from District Court, Edwards County; Joseph Jones, Judge.</p> <p>Action by Nora B. Wheat against Gus D. Wheat and another. Judgment for plaintiff, and defendants appeal.</p>

H. Starke, Judge. Suit for injunction by the Temple Lumber Company against the Commissioners’ Court of Sabine County and others. From an order dissolving a temporary writ and denying a permanent injunction, plaintiff appeals.

Abney, Special, Judge. Action by Barrett Gibson against the Texas Company to recover damages for a breach of a written contract. Judgment for defendant, and plaintiff appeals. The action is one for damages brought by the appellant in his own behalf against the appellee for alleged breach of a written contract.

<p>1. Escrows <§rxo8(l) — Delivery of oil and gas lease in escrow held not to convey title until conditions performed.</p> <p>Where an oil and gas lease was delivered to a hank in escrow, its delivery in escrow could convey no title to the lessees until the conditions of the contract were performed.</p> <p>2. Escrows <®=o6— Oil and gas lease in escrow held not complete until operations were begun.</p> <p>A contract under which an oil and gas lease was placed in escrow held- to contemplate that no title should vest in the lessees until a standard drilling outfit should be placed upon the premises and drilling operations commenced with it.</p> <p>3. Escrows <S=9 — Extension of time for installing standard drilling rig held not a waiver of requirement as to kind of rig in escrow agreement.</p> <p>Where an oil and gas lease was placed in escrow under a contract providing that delivery to the lessees should not be made until a standard drilling outfit should be placed on the premises and drilling operations commenced with it, a written instrument, extending to the lessees the time within which they might place the standard rig on the premises, held a mere extension, and not a waiver of the requirement for a standard rig instead of a star rig.</p> <p>4. Frauds, statute of <§te>56(I) — Contract specifying conditions of escrow need not be in writing.</p> <p>A contract, specifying the condition on which an instrument is placed in escrow, is not within the statute and need not be in writing, but may rest in parol, or partly in writing and partly in parol.</p> <p>5. Escrows <S=»9i— Requirement for installing standard drilling rig on oil lease held not waived.</p> <p>Where a contract placing an oil and gas lease in escrow provided that delivery of the lease to lessees should not be made until a standard drilling rig was installed, that the lessors assisted lessees in organizing a corporation for acquiring more acreage in the vicinity held not to constitute a waiver on the part of the lessors of the requirement that a standard and not a star rig was to be installed.</p> <p>6. Estoppel <®=»52 —? Requirements of waiver enumerated.</p> <p>A waiver may be express or implied, but in the absence of an express agreement a waiver ' will not be presumed or implied contrary to the intention of the party, whose rights would be injuriously affected thereby unless by his conduct the opposite party has been misled to his prejudice into the honest belief that such waiver was intended or consented to.</p> <p>7. Frauds, statute of <®=156 — Statute held not to enter into question of abandonment of escrow agreement.</p> <p>A lease deposited in escrow, though within the statute, is not involved in an issue as to abandonment by subsequent leases of the escrow agreement; and, the escrow agreement not being within the statute, the statute does not enter into the question of abandonment, though it, is contended that the subsequent leases were not signed by parties sought to be charged with the abandonment by reason thereof. '</p> <p>8. Frauds, statute of <§=»63(l) — Modification, rescission, or abandonment of escrow contract provable by parol.</p> <p>Since an escrow contract is not within the statute of frauds, it can be modified, rescinded, or abandoned without complying with the statute, and proof thereof by parol is admissible.</p> <p>9. Escrows — Finding that oil and gas lease contract had been abandoned.</p> <p>In a suit to compel delivery of an oil and gas lease placed in escrow, evidence held to sustain a finding that the contract under which the lease was deposited in escrow had been abandoned.</p> <p>10. Mines and minerals <S=>78 (() — 'Time of essence of contract for leasing and operation.</p> <p>Time is of the essence of contracts providing for the leasing of oil and gas lands and for commencing operations thereon.</p> <p>11. Contracts <s=>317 — Failure to perform substituted contract not a revival of original one.</p> <p>A failure to perform a substituted contract does not revive the original one.</p> <p>On Motion for Rehearing.</p> <p>12. Appeal and error 3fc=842(l) — 'When waiver a question of law stated.</p> <p>Where the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law not binding on an appellate court.</p> <p>13. Appeal and error <S=*I 101— Court of Civil Appeals not bound by findings of fact nor conclusions of law below, even if consented to.</p> <p>Courts of Civil Appeals are not bound in all cases by findings of fact of either the jury or the trial judge, nor by conclusions of law filed in a trial court, even where appellee agrees that such findings are supported by evidence, or that such conclusions are correct.</p>

<p>Appeal from District Court, Stephens County; W. R. Ely, Judge.</p> <p>Suit to cancel lease by J. H. -Bratton against the Texas Pacific Coal & Oil Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Suit by Mrs. S. E. E. Joplin, joined by her husband, against Stella Caldwell Degenhardt and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Interpleader ⅞=>35 — Where bank mere inter-pleader, attorney’s fees allowable.</p> <p>In an action against a bank for a sum alleged to have been on deposit to plaintiff’s credit, where the bank admitted a sum on deposit, but, by reason of instructions given, the bank assumed the attitude of a stakeholder and tendered the money into court for the benefit of the real owner, the bank’s position was that of an interpleader, and a reasonable attorney fee should have been allowed.'</p> <p>2. Election of remedies <®=>| — Defined.</p> <p>“Election of remedies” has been defined to be the choosing between two or more different and coexistent modes of procedure and relief allowed by law on the same state of facts, and there can be no election between remedies unless two inconsistent remedies exist.</p> <p>[Ed. Note. — rEor other definitions, see Words and Phrases, Eirst and Second Series, Election.]</p> <p>3. Election of remedies @=32— Suit to rescind lease and action against depositary for rentals held not coexisting remedies.</p> <p>Where a bank refused to pay a draft drawn for a sum alleged to be on deposit to plaintiff’s credit, and it was shown that plaintiff, previous to the time that the deposit was made by an oil company for his credit, had instructed the bank .not to receive the deposit, and had filed a suit against the oil company to cancel a lease, he had a remedy for cancellation of the lease, but had no remedy against the bank for deposited rentals until the bank refused to pay, and did not have a coexisting remedy by action against the company for money rentals, and, in an action against the bank for the deposit, was not called upon to choose between two coexisting modes of procedure.</p>

B. Daviss, Judge. Suit by J. T. Jackson against J. C. Wallace and others to foreclose a judgment lien, in which the defendants filed a petition in the nature of a bill of review to have the judgment foreclosing the lien sot aside. Judgment for defendants, and plaintiff appeals.

<p>1. Railroads <©=5½, New, vol. 6A Key-No. Series — Company not suable for injury during federal control.</p> <p>A railway company is not liable upon a cause of action for injury arising during federal control and as a result of operation by the Director General.</p> <p>2. Railroads <S=443(I) — Evidence insufficient to show negligence in killing mule at crossing.</p> <p>In an action for injury to a mule struck by a motorcar at an open crossing established at plaintiff’s request, making the statute requiring the company to fence its track inapplicable, evidence held insufficient to establish negligence on the part of the employees operating the car.</p>

Kennon, Judge. Application by Harriett Tennille G.riffin and others to probate the will of Sarah Boss, contested by W. H. Abrams and others. Probate was denied in the county court, and on appeal to the district court a general demurrer to the petition and plea to the jurisdiction were sustained and the application was dismissed, and. applicants appeal.

<p>1. Principal and_surety <©=>155 — Complaint on bond guaranteeing compliance with terms of oil lease held sufficient.</p> <p>A complaint, alleging the execution of an oil lease, under which defendants were to begin drilling by a certain date and drill to a given depth, and a bond to secure performance, and that defendants merely erected a derrick, rented a boiler, etc., and dug a hole six or eight inches deep, which was a subterfuge to evade payment of the bond, stated a cause of action on the bond.</p> <p>2. Principal and surety <©=>59 — Lease, bond, and escrow agreement construed together.</p> <p>Where a bond, guaranteeing compliance with oil lease, conditions that lessees begin drilling by a certain date and drill to a given depth, was placed in escrow, the lease, bond, and escrow agreement, being contemporaneous, would be construed together.</p> <p>3. Principal and surety. <©=>162(2) — Whether lessees began drilling held question of fact t for trial court.</p> <p>Whether lessees of oil lands began drilling, as required by the lease and bond executed to guarantee compliance therewith, held a question of fact for the trial court.</p> <p>4. Mines and minerals <©=>73 — Oil lease contract construed favorably for lessor.</p> <p>The terms of an oil lease contract are generally construed more favorably for lessor than for lessee.</p> <p>5. Appeal and error <⅜=931(1) — Facts necessary to support judgment presumed, in absence of request for findings.</p> <p>In the absence of a request for findings of fact, the trial court’s judgment must be given the greatest weight, and every presumption of fact' necessary to support his judgment indulged.</p> <p>6. Principal and surety <©=>81 — Erection of drilling apparatus and digging small hole held insufficient compliance with lease, requiring that drilling be begun within certain time.</p> <p>Hauling lumber, placing a derrick and other apparatus, and digging a hole six or eight inches deep, held insufficient to show a beginning to drill an oil well pursuant to a lease, so as to relieve lessees’ bondsmen from liability.</p> <p>7. Principal and surety <®=»I6I — Evidence of actual damages held sufficient to support judgment for amount of lessees’ bond.</p> <p>Evidence that oil and gas lessors were kept out of the use and control of the leased premises for mineral purposes for six months, within which lessees were to drill to a certain depth, and were prevented from selling the lease for a sum probably twice that contracted for, held to show such actual damages as to support judgment for lessors for the amount of lessees’ bond.</p> <p>8. Principal and surety ⅞=3163 — Sureties entitled to judgment against principals for amount they may be compelled to pay under judgment against all.</p> <p>In an action on a bond guaranteeing the beginning-and diligent prosecution of drilling operations as provided by the terms of an oil lease, the court, on rendering judgment for plaintiffs, erred in not rendering judgment for the sureties on the bond against the principals for whatever amount they might be compelled to pay under such judgment.</p>

<p>Appeal from District Court, Williamson County; George. Calhoun, Judge.</p> <p>Action by the First State Bank & Trust Company of Taylor, Tex., against Robert J. Eekhardt and others, in which George C. O’Brien, administrator of the estate of Mrs. Mary E. Henderson, deceased, filed plea in intervention. General demurrer and special exceptions to plea of intervention sustained, and the intervener appeals.</p>

<p>I. Specific performance <@=5102 — Action is in personam and not in rem.</p> <p>A suit for specific performance is an action in personam and not in rem, notwithstanding Rev. St. art. 1998, providing that where a judgment is for the conveyance of real estate the decree may pass the title without any act on the part of the party as to whom the judgment is rendered.</p> <p>2. Specific performance <@=>107 — Service by statutory nonresident notice on nonresident defendant held insufficient.</p> <p>In purchaser’s action for specific performance against nonresident vendor of land within the state, service of nonresident notice under Rev. St. arts. 1869-1873, where defendant did not appear and answer as required by article 1873, held insufficient; an action for specific performance being an action in personam and not in rem.</p> <p>3. Pleading <@=>205(2) — General demurrer merely attacks sufficiency of allegations-to state a good cause of action.</p> <p>A general demurrer merely attacks the sufficiency of the allegations to state a good cause of action.</p> <p>4. Pleading <®=>34(3) — Every reasonable in-tendment indulged in favor of petition on general demurrer.</p> <p>On general demurrer every reasonable in-tendment will be indulged in favor of the petition.</p> <p>5. Process <@=>155 — Insufficiency of service not raised by general demurrer.</p> <p>In action for specific performance against nonresident vendor of land within the state served by nonresident notice under Rev. St. arts. 1869-1873, in which the petition did not allege that defendant had been so served, and his failure to appear and. answer under article 1873, the insufficiency of such service could not be raised by general demurrer to the petition.</p>

. Suit by A. Myers and others against Xgna-cio Vergara. Judgment for plaintiffs affirmed by the Court of Civil Appeals (227 S. W. 1118), and defendant brings error.

<p>Appeal from Montague County Court; A. L. Scott, Judge.</p> <p>Action by W. O. Reynolds against John Barton Payne, federal Agent, and others. From a judgment for plaintiff, defendant named appeals.</p>

J. Alexander, Judge. Suit to restrain levy and collection of a tax by T. O. Hill and others against the Smithville Independent School District and others. From an order dissolving a temporary injunction, plaintiffs appeal.

<p>I.Waters and water courses <©==>2:16 — Power to create irrigation district governed by law in existence at time power was exercised.</p> <p>Any question as to the existence of a power to create an irrigation district and to tax property therein must be determined according to the law in existence when the power was exercised.</p> <p>2. Statutes <©=263, 234½, New, vol. I3A Key-No. Series — Are prospective, and not retrospective, unless otherwise expressly provided.</p> <p>Legislation has prospective force and effect, and not retrospective, unless provided in the law itself, and not then so as to affect vested rights.</p> <p>3. Waters and water courses @=225 — Under, former law inclusion of municipality in irrigation district without submission of question to voters thereof held valid.</p> <p>Under Const, art. 3, § 52, and irrigation district laws (Laws 1913, c. 172 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5107 — 1 to 5107 — 105]), and (Laws 1917, c. 87 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 5107 — 1 to 5107 — 117]), an irrigation district created before enactment of Gen. Laws 36th Leg. 2d Called Sess. (1919), c. 28, § 118 (Vernon’s Ann. Civ. St. Supp. 1922, art. 5107 — 118), could include a municipality without submitting the question of whether the municipality should be included to the voters thereof.</p> <p>4. Waters and water courses @=225 — Organization of irrigation district not absolutely void can be questioned only by quo warranto proceeding, and not coiiateraiiy.</p> <p>The right to include a municipality in an irrigation district can only be questioned by quo warranto proceeding instituted by the state;' the district being a governmental agency, and not subject to collateral attack unless absolutely void.</p> <p>5. Waters and water courses <S=231 — Assessment of property in city constituting part of irrigation district supplied with water by company which received water from district held valid.</p> <p>Where owner of land in irrigation district did not receive water directly from the district, but was supplied by a concern which was supplied with water by the district, and in turn furnished it to such owner and other residents of a city constituting a part of the irrigation district, the assessment of such owner for purpose of paying the irrigation bonds held- not invalid on the ground that, the owner received no benefit from the irrigation project.</p> <p>6. Constitutional law @=233, 290(1) — Eminent domain @=2[ll)i— Waters and water courses @=216 — Assessment of storehouse receiving water from company furnished therewith by district held not unconstitutional.</p> <p>Assessment levied on storehouse in city constituting part of irrigation district' created under Const, art. 3, § 52, and Laws 1913, c. 172, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5107 — 3), held not violative of the equal protection clause of Const. U. S. Amend. 14, or Const. Tex. art. 1, §§ 17 and 19, prohibiting the taking of private property without adequate compensation and without due process of law, though owner did not receive water directly from the district, but, like other inhabitants of the city, was furnished therewith by a company which procured its water from the irrigation district.</p> <p>7. Waters and water courses <@=»231— Owners of land in irrigation district who did not seek to have land excluded therefrom could not attack validity of assessment in district’s action against them for delinquent taxes.</p> <p>Owners of land in irrigation district created nnder Gen. Laws 1913, c. 172, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5107 — 3), who did not contest a bond issue, or seek to have their property excluded from the district under sections 17, 18, and 19 (articles 5107 — 17 to 5107 — 19), could riot attack validity of assessment in district’s suit against them to recover judgment for delinquent taxes.</p>

<p>1. Evidence <®=>208(6) — Answer containing no general denial admissible in proof of facts therein admitted against interest.</p> <p>Where defendant’s superseded answer did not have a general denial, it was admissible in proof of .the facts therein admitted against interest.</p> <p>2. Evidence <§=5265 (8)— Pleadings admitted in evidence held insufficient to show negligence of railroad in killing stock along right of way.</p> <p>In an action for killing stock along a right of way, in view of Rev. St. art. 6603, providing that if a railroad company shall fence its road it shall only be liable for injury resulting from a want of ordinary care, and in proof of his cause plaintiff introduced defendant’s answer, which admitted running into or over the cattle, but denied negligence in so doing, and also in failing to keep right of way fences in repair, the burden of proof that the cattle were killed and injured from negligence was not discharged.</p> <p>3. Railroads <§=>412(1)— Peremptory instruction for injury to stock going through opening in fence held error.</p> <p>In an action for injury to stock run over on defendant’s right of way, where the cattle came onto the right of way through an opening in the fence required by Rev. St. art. 6603, and no negligence was shown on the part of defendant in not discovering the opening which was caused' by third persons, oy in not discovering the cattle before they were hit, a peremptory instruction for plaintiff was error.</p>

<p>Appeal from Harris County Court; John W. Lewis, Judge.</p> <p>Suit by the Mackay Telegraph-Cable Company against L. W. Wells and others. Judgment for plaintiff,, and defendants appeal.</p>

<p>Appeal from District Court, Stephens County; G. O. Bateman, Judge.</p> <p>Action by W. .D. Mayfield and another against Charles B. Gaddis. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Trial <®=»352(l)—Special issue on negligence and contributory negligence held confusing.</p> <p>A special issue in action against carrier for personal injuries, “Was said injury the direct result of the negligence of the defendant, its agents, servants, and employes, or was it the result of the contributory negligence of plaintiff?” was confusing and erroneous.</p> <p>2. Negligence <©=382—“Contributory negligence” implies negligence of defendant.</p> <p>The term “contributory negligence” ■ necessarily implies that there was negligence of the defendant to which plaintiff’s negligence contributed, and it is not necessary to the defense of contributory negligence to show that such negligence was the sole proximate cause of the injury.</p> <p>3. Carriers <⅜=321(23), 348(14) — Charge on negligence and contributory negligence should be confined to alleged acts supported by evidence.</p> <p>In action for injuries to a passenger, received while alighting, the charge on negligence should be confined to such acts or omissions as are alleged and supported by evidence, and should not embrace other grounds, such as negligence in a general way in the operation and maintenance of trains, etc., and the same rule should apply as to contributory negligence.</p> <p>4. Trial <©=>233(3)—Court should not refer jury to pleading for description of injuries.</p> <p>In action against carrier for. personal injuries, it is the better practice to confine the Jury 'to a consideration of such alleged injuries as there is evidence to support, instead of submitting all the injuries alleged in plaintiff’s petition, and referring the jury to that pleading for a description of them.</p> <p>5. Trial «⅝^215 — Submission of ease on general charge and special issues condemned.</p> <p>The submission of a case to the jury on a general charge, as well as on special issues is condemned.</p>

<p>1. Frauds, statute of <§=»72(l) — Attaching deed to grantee’s petition for breach of verbal contract to purchase interest in royalty held not to have the effect to charge contract subject to statute as to sale of realty.</p> <p>Where a deed of an interest in oil and gas and other minerals under land was attached to grantee’s petition in'an action for breach of a verbal contract whereby the petition alleged plaintiff agreed to sell and defendant agreed to purchase “one-half of the one-eighth royalty from the said land,” and did not assert that the contract covered anything more, it did not have the effect of charging a contract for the whole of the interest conveyed, in absence of an allegation to that effect, and, so construing the petition to allege a contract to convey royalty, the statute relating to sales of real estate does not apply; royalty being personalty.</p> <p>2. Mines and minerals <®=»74 — Petition for breach of contract to purchase interest in royalty held not good on theory of fraudulent inducement to call off other contracts.</p> <p>A petition in an action for breach of contract to purchase interest in oil royalty is not good on the theory that defendant fraudulently induee'd plaintiff to call off contracts for the sale thereof to other parties, where no positive agreements with such parties are alleged.</p>

<p>1. Adverse possession <§=»80(2) — Description in deed held sufficient.</p> <p>Where the description in a deed, aided by parol evidence and the recorded field notes of the surveyor, was sufficient to locate the land, it will support a claim of limitation.</p> <p>2. Boundaries <©=^36 (5) — Survey by surveyor of another district held admissible.</p> <p>To supplement the description in a deed offered to support limitation, the recorded survey and field notes made by a surveyor of an-' other district are admissible, especially where the work was approved and sale made under it by the land commissioner.</p> <p>3. Adverse possession <⅜»82 — Deed must be recorded in county in which land is situated.</p> <p>A deed recorded in another county is not a sufficient compliance with Vernon’s Sayles’ Ann. Civ.- St. 3914, arts. 5674, 6827, providing that, to support five-year limitations, the deed under which the land is claimed shall be recorded in the county where the land is situated.</p> <p>4. Adverse possession <®=»l(5(5) — Whether land was in county in which deed was recorded held a question for the jury.</p> <p>Where there was doubt in which of two counties certain land was situated, it was a question for the jury whether the land was in the county of registration of the deed under which a claim of limitation was made.</p> <p>5. Adverse possession ⅞⅛=»82 — Part of survey in county of registration of deed held sufficient.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5674, 6827, providing for the registration of land to support .limitations, it is sufficient to support a finding for the entire survey, if a portion of it is in the county of registration.</p> <p>6. Adverse possession <©=»82 — Tax receipts of county of registration of deed held admissible.</p> <p>Where a claim of limitations was made, tax receipts are admissible, if any part of the land was in the county in which deed was recorded and taxes paid.</p> <p>7. Adverse possession <©=>73 — Invalid grant by state may be sufficient muniment for (imitation of title.</p> <p>Where the land is not vacant, a grant by the state passes no title, but it may be a sufficient muniment on which to base a limitation title.</p> <p>8. Adverse possession <©=527 — Invalid grant held no evidence of occupation.</p> <p>An invalid grant by the state is not evidence of occupancy in support of a limitation title.</p>

<p>1. Courts <®==>26 — District court has jurisdiction of plea in reconvention for diamages for injunction, less than jurisdictional amount.</p> <p>Where the district court had jurisdiction of the original suit because it was for an injunction, a plea in reeonvention for damages between the plaintiff and defendant would be sustained, though independently the court would not have had jurisdiction of the amount involved.</p> <p>2. Courts <§=o26 — District court has no jurisdiction over cross-action between defendants for $300 expended in abating the nuisance.</p> <p>In a suit for a mandatory injunction to abate a nuisance, the district court has no jurisdiction of a cross-action by one defendant against another to recover $300 expended by the former jn complying with the injunction, since the cause of action on which the cross-action was based did not arise until after the settlement of the controversy between the plaintiffs and defendant, and was to be a new cause of action, which on its face involved less than the jurisdictional amount.</p> <p>3. Courts <§=» 122 — Jurisdiction is determined from face of pleadings.</p> <p>The amount in controversy as shown upon the face of the pleadings determines the jurisdiction of the court.</p>

<p>Vendor and purchaser <§=^223 — Title of lessee under mineral lease not sufficient to support plea of innocent purchaser.</p> <p>Where record title to community property was in the husband, the title acquired by mineral lease executed by husband for term of 12 months, with the right to extend the lease without commencemeut of operations for successive periods of 6 months by payments of specified amounts, held void as to wife’s undivided one-half interest, though lessee took lease without notice of wife’s interest; the title under a lease not being sufficient to support the plea of an innocent purchaser.</p>

L. Davenport, Judge. Action by C. A. Harris against the Farmers’ & Merchants’ State Bank of Ranger and another. From the court’s refusal to reinstate the suit after a voluntary nonsuit, plaintiff appeals.

<p>Appeal from Tarrant County Court; W. P. AValker, Judge.</p> <p>Action by H. H. Davis against Charles H. Collins and wife. From judgment for plaintiff, the named defendant appeals.</p>

Action by O. J. Blum against R. J. Eck- ■ hardt, defendant, and others, as garnishees, in which the First State Bank & Trust Company of Taylor was impleaded. From a judgment for plaintiff, the bank appeals.

Suit by the Equitable Surety Company against L. A. Stemmons, W. L. Leeds, the Miller-Stemmons Company, and the Lion Bonding & Surety Company. Judgment of dismissal as to first three named defendants and for plaintiff against last-named defendant, and the plaintiff appeals.

<p>Appeal from District Court, Palls County; Prentice Oltorf, Judge.</p> <p>Henry Karels was convicted of manufacturing intoxicating liquor, and he appeals.</p>

<p>Appeal from District Court, Erath County; J. B. Keith, Judge.</p> <p>Action by Mary Martin and husband against J. O., Walton and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from Comanche County Court; E. J. Reese, Judge.</p> <p>Action by Swift & Co., against R. E. Short. Judgment for defendant, and plaintiff appeals.</p>