Volume 240 — South Western Reporter

<p>Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.</p> <p>Walter Lowe was convicted of robbery, and he appeals.</p>

<p>Original ex parte application for writ of ha-beas corpus by E. G. Reynolds.</p>

<p>1. Evidence <&wkey;>57l (6) — Expert testimony as to handwriting cannot be discarded altogether.</p> <p>Even though expert testimony as to handwriting is unsatisfactory in character and should he received and acted upon with great care and caution, it cannot be discarded altogether as evidence,</p> <p>2. Evidence &wkey;>588 — It is jury’s province to pass upon credibility of witnesses.</p> <p>It is the province of the jury to pass upon the credibility of the witnesses and to accord to the testimony of plaintiff’s son as to admissions made to him by defendant, which defendant denied making, such weight as in their judgment they believed it was entitled to.</p> <p>3. Appeal and error <&wkey;999(l) — Appellate court can only determine whether there was evidence sufficient to support conclusion of Jury.</p> <p>It is not the province of the appellate court to perform the functions of a jury, but simply to determine whether there was evidence before the jury to support the jury’s answer to the special interrogatory.</p> <p>4. Bilis and notes <&wkey;>517 — Evidence held to sustain finding defendant signed note in suit.</p> <p>Where defendant denied executing the note in suit, evidence consisting of expert testimony as to comparison of handwriting, testimony of witnesses familiar with defendant’s signature, and testimony concerning other facts and circumstances tending to support an inference she signed the note, held sufficient to sustain the answer of the jury to a special issue that defendant did sign the note.</p> <p>5. Evidence <&wkey;474(!4), 568(3) — Witnesses who had seen defendant write name held competent to testify as to genuineness of signature, and objection held to go only to weight of testimony.</p> <p>Witnesses, who had seen defendant sign her name several times and had had occasion to refer frequently to the instruments containing the signature of defendant, are competent to express an opinion as to the genuineness of the signature of defendant on the note in suit; the objection to the qualifications of such witnesses going rather to the weight of their testimony than to its competency.</p> <p>6. Trial <&wkey;307(3) — Jury can take with them note sued on notwithstanding denial of signature by defendant.</p> <p>Under Yernon’s Sayles’ Ann. Oiv. St. 1914, art. 1957, the jury can take with them in their retirement to consider the verdict the note in suit, though the genuineness of defendant’s signature was denied, notwithstanding the objection that by so doing each of the jurors were permitted to become a witness and make a comparison of the handwriting on the note with other handwriting of the defendant.</p>

<p>1. Trial <&wkey;>l39(l) — Where evidence sufficient for jury refusing instructed verdict not error.</p> <p>Where there was sufficient evidence for the Jury on issues of fact, there was no error in refusing an instructed verdict.</p> <p>2. Sales <&wkey;l82(l) — Permitting jury to determine whether pecans in merchantable condition at destination not error.</p> <p>Where plaintiff’s testimony showed that pecans were merchantable when loaded in a tight car, and were clean and merchantable at point of shipment and defendant introduced evidence that the pecans were not sound when received, there was no error in permitting the jury to determine their condition as an issue of fact.</p>

<p>Error from District Court, Travis County; George Calhoun, Judge.</p> <p>Action by. Lee Calhoun against the Austin Street Railway Company. Erom judgment for plaintiff, defendant brings error.</p>

<p>1. Principal and agent &wkey;>l48(2) — One signing order is charged with knowledge of recited limitation of agent’s authority, though he did not read it.</p> <p>One signing a written order for goods providing that no agreements or conditions, verbal or otherwise, not therein mentioned, would be recognized, was charged with knowledge that the agent who took the order could not bind his principal by any oral agreement, and cannot avoid liability by claiming he did not read the order, where not prevented from so doing; it being his duty to know what he signed before accepting it.</p> <p>2. Sales &wkey;o38(I)— Selling agent’s unfulfilled promise to help sell goods purchased does not amount to fraud.</p> <p>An unfulfilled promise by a selling agent to help the buyer sell goods purchased by him does, not amount to fraud, being merely a promise to perform a service.</p> <p>3. Evidence <i&wkey;442 (6) — Evidence as to agent’s representations and promises improperly admitted.</p> <p>In an action for the purchase price of goods sold under an order providing that no agreements or conditions not therein mentioned would be recognized, evidence as to the selling agent’s representations and promises was improperly admitted.</p>

District Court, Tyler County; D. F. Singleton, Judge. Action of trespass to try title, between Sidney Stewart and others against L. H. Marshburn and others. From judgment for the latter, the former appeals.

D. Paschal, Judge. Action by W. H. Askey against W. D. Stroud, in which W. H. Stroud intervened. From a judgment granting only part of the relief prayed for, plaintiff appeals.

<p>1. Attachment &wkey;>!82 — Record of attachment in county where suit pending is constructive notice to purchasers.</p> <p>Under Rev. St. art. 6842, declaring the record of any instrument authorized or required to be recorded notice of the existence thereof, and article 6858, relative to the recording of attachments, and providing that in counties other than the one in which suit is pending the lien, shall not be valid against purchasers for value and without notice unless recorded, an attachment lien, filed in the county in which the suit is pending, is constructive notice to purchasers pendente lite.</p> <p>2. Attachment &wkey;>l82 — Statute as to recording not repealed by statute as to notice of iis pendens.</p> <p>Rev. St. arts. 6837, 6839, 6840, relative to the filing and recording of lis pendens notice, do not expressly or impliedly repeal article 6858, authorizing the record of an attachment lien, so as to make such record in the county where the land is situated of no effect.</p> <p>3. Attachment &wkey;>l82 — Clause, if treated as exception or proviso, strictly construed.</p> <p>If the provision of Rev. St. art. 6858, that an attachment lien shall not be valid against subsequent purchasers, for value and without notice, of real estate in a county other than the one in which the suit is pending unless recorded, be treated as an exception or proviso intended to restrict the enacting clause, it will be ¡Strictly construed, and take no case out of the enacting clause which does not fall fully within its terms.</p> <p>4. Statutes <&wkey;207 — Particular intent inconsistent with general intent treated as exception, and will stand.</p> <p>When a statute first expresses a general intent and afterwards an inconsistent particular intent, the latter will be taken as an exception to the former, and both will stand.</p> <p>5. Statutes <&wkey; 159 — Existing statutes not repealed unless repugnancy unavoidable.</p> <p>A statute without negative words will not repeal existing statutes, unless there is an unavoidable repugnancy.</p> <p>6. Lis pendens &wkey;>l3 — Holders of liens, record of which constitutes constructive notice under other laws, are excluded from statute requiring notice.</p> <p>Rev. St. arts. 6839, 6840, providing that the pendency of a suit or action involving title to land shall not prevent effective transfers for valuable consideration and without other notice, actual or constructive, unless notice of lis pen-dens is properly filed, saves from that act lien-holders filing their liens under some other law making the record thereof constructive notice.</p> <p>7. Attachment ¡&wkey;18l — Burden on purchaser pendente lite to show purchase for value and without notice.</p> <p>Under Rev. St. arts. 267, 268, relative to the lien of attachments, and articles 6839, 6840, relative to the filing of lis pendens notice, the burden of proof is on one purchasing land pending an attachment suit to show that she purchased without notice and for value.</p> <p>8. Attachment c&wkey;181 — Mortgages t&wkey;l86(3) —Burden not on creditor to show lack of notice of prior unrecorded deed or mortgage.</p> <p>Under the registration law, a creditor is not required to show that he had no notice of a prior unrecorded deed or mortgage at the time of securing his lien on the land fixed by legal process, and the burden is on the holder of a prior unrecorded instrument to prove notice of his rights to the creditor at the time of the levy.</p> <p>9. Attachment &wkey;?201 — Foreclosure and sale relates back to levy and divests title which debtor then had.</p> <p>The foreclosure of an attachment lien and a sale thereunder relates back to the levy, and divests the title out of the debtor which he had at the date of the levy.</p> <p>10. Attachment <&wkey;20 — Not rendered void by ‘ subsequent attachment in the same suit.</p> <p>Where a writ of attachment was issued and levied on April 10th, and properly recorded, and another attachment was issued in the same suit and levied on the same land on August 4th, but the first writ was not defective, and the court found it to be a first lien, and decreed foreclosure and sale of the debtor’s interest in the property as of its date, the second writ did not render the first attachment void so as to permit intervening rights.</p> <p>11. Attachment &wkey;>182 — Purchaser held not entitled to attack writ, levy, and judgment.</p> <p>One purchasing land pending a suit in which the interest of a person therein had been attached held not entitled to attack the writ, levy, and judgment of foreclosure in a suit to partition the land brought by the purchaser at the attachment sale.</p> <p>12. Mortgages &wkey;>424 — Lien barred when extension was not made and recorded until after land sold under attachment.</p> <p>Under Rev. St. art. 5695, relative to the making and recording of a contract extending maturity cf a debt secured by mortgage or vendor’s lien, where the note secured by a mortgage was more than four years overdue before the attachment of the land, and a contract of extension was not made until after foreclosure of attachment lien and sale of the land, the note and mortgage lien were barred and not enforceable against the purchaser.</p> <p>13. Mortgages <&wkey;424 — Statute as to extension or time for bringing suit applies to maker and subsequent purchasers.</p> <p>Rev. St. art. 5695, providing that if the debt secured by mortgage and the lien is not extended or recorded, or suit brought within four years after maturity of the debt, the right to extend of record or to bring suit shall be forever barred, applies to the original maker, as well as to subsequent purchasers of the land.</p> <p>14. Mortgages <&wkey;424— Purchaser at attachment sale may plead limitations against lien aqd debt.</p> <p>A creditor attaching his debtor’s land and purchasing the land on foreclosure of the lien more than four years after the maturity of the debt secured by a mortgage may plead limitations against a cross-action for foreclosure of the mortgage.</p> <p>15. Limitation of actions 148(4) — Persons renewing debt after it was barred by limitations held personally liable.</p> <p>Where the owners of land subject to a mortgage securing a debt which was .more than four years overdue, and one to whom they sold the land pending suit in which the land was attached, renewed the debt by an extension agreement, made and recorded after sale of the land under attachment, they rendered themselves liable on the debt as a personal obligation.</p>

<p>Appeal from District Court, Montague County; C. R. Pearman, Judge.</p> <p>Action by Tom Lindley against W. L. Reed. Judgment for plaintiff, and defendant appeals.</p>

Action by the Southern Surety Company against the Houston Light & Power Company and others. Judgment for defendants was affirmed by the Court of Civil Appeals (203 S. W. 1115), and plaintiff brings error.

<p>Error to Court of Civil Appeals of Thii-d Supreme Judicial District.</p> <p>Action by S. W. Johnson against the City of Austin. Judgment for plaintiff was affirmed by the Court of Civil Appeals (204 S. W. 1181), and defendant brings error. Affirmed.</p>

Suit by W. B. Booth against A. Campbell and another, in which the defendants filed a counterclaim. Prom a judgment dismissing the action and rendering judgment for defendants against the sureties on the sequestration bond given by plaintiff, plaintiff and the sureties appeal. Reversed and remanded for new trial.

<p>Appeal from District Court, Dallas County; Kenneth Force, Judge.</p> <p>Action by Opal L. McDowell and others against A. B. Smith- and others. Judgment for plaintiffs, and defendants appeal.</p>

F. Weldon, Judge. Suit by W. A. Stuckey, doing business under the name of the Lone Star Tank Company, and another, against J. P. Jones, County Judge, and others. From a judgment sustaining a motion to dissolve a temporary injunction, plaintiffs appeal.

M. Deaver, Judge. Suit by the Popular Dry Goods Company against W. A. McKee and another. Judgment for the plaintiff and the defendant named appeals.

' Suit for interpleader by the American Surety Company of New York against C. R. Melton and others. From an order granting a temporary injunction, restraining defendants from attempting to enforce payment of judgments recovered against plaintiff, pending determination of the interpleader, defendants appeal.

Suit for interpleader by the American Surety Company of New York against Prank R. Defenbaugh. Prom an order granting a temporary injunction, restraining defendant from attempting to enforce payment of judgment recovered against plaintiff, pending determination of the interpleader, defendant appeals.

<p>Appeal from Dallas County Court.</p> <p>Action by N. Nigro & Co. against the Gro-vier-Starr-Parvin Company. Judgment for plaintiff, and defendant appeals.</p>

W. Napier, Judge. Suit by the Mona Marie Trust against Joe Overby and others. From an order denying motion to dissolve a temporary injunction, defendants appeal.

<p>1. Damages <§=>52 — Recovery cannot be had for fright unaccompanied by any other injury.</p> <p>No recovery can be had for mere fright which is neither attended nor followed by any other injury; but where physical injury, such as sickness, insanity, miscarriage, etc., results from fright or other mental shock caused by the willful act or omission of another, which is the proximate cause of the injury, and the injury ought to have been foreseen as a natural and probable consequence thereof, the injured party can recover.</p> <p>2. Damages <§=>208(2) — Negligence <§=>136(25) Cause of injury by fright held for jury.</p> <p>Questions whether physical injury results from fright or mental' shock caused by willful act or omission of another, whether act proximate cause, and whether injury ought to have been foreseen, generally, are questions for jury.</p> <p>3. Appeal and error <§=>927(7) — Evidence considered favorably to plaintiff in determining propriety of directed verdict.</p> <p>In determining the propriety of directing a verdict for defendant, the evidence must be considered most favorably to plaintiff, disregarding the conflicts and contradictions, no matter how strong or how much in conflict the contradicting evidence may have been.</p> <p>4. Master and servant <§=>332(2) — Employer’s liability for act of manager taking injured empfoyé home held for jury.</p> <p>In an action by a wife of a servant, joined by her husband, against the master for injuries to the wife resulting from fright and mental shock caused by defendant’s general manager taking the husband to his home in a bloody, bruised, and mashed up condition, whether the act of taking the servant home was done in the performance of a duty defendant owed husband as employs, or whether it was done as a matter of custom in the operation of the business, and whether the general manager was acting within the scope of his authority, held for the jury.</p> <p>5. Master and servant <§=>351 — Employer liable for negligent performance of duty under contract with compensation insurer.</p> <p>Where a master provided a method of caring for injured employés by means of insurance taken under the Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), but under its contract with the insurance association was under duty to act when an employs was injured, that duty must not be negligently performed; and the master is liable for causing physical injury to a workman’s wife shocked when he is brought home in a wounded condition.</p> <p>6. Negligence <§=>8 — Miscarriage resulting from fright held actionable.'</p> <p>A petition for damages to wife of employe resulting from fright and mental shock caused by act of master in taking the husband home in a bloody, bruised, and mashed up_ condition without warning her, though her critical condition was known, with the result that she suffered a miscarriage, held to state a cause of action.</p> <p>On Motion for Rehearing.</p> <p>7. Damages ©=>208(2) — Whether taking bloody employé home caused miscarriage1 to wife held for jury.</p> <p>In action by wife of employé against master for injuries resulting from fright and mental shock caused by the bringing home of the husband in a bloody and mashed up condition without warning after an accident, resulting in a miscarriage and sickness, whether the act of the master occasioned the injury held, for the jury.</p>

<p>1. Railroads <&wkey;>5!/2, New, vol. 6A Key-No. Series — Director General's baggage regulations set aside state laws.</p> <p>The regulations of the federal Director General of Railroads, as to liability for baggage, set aside any state laws in conflict with them during the period of federal control as to intrastate as well as interstate traffic.</p> <p>2. Carriers <&wkey;405 (4) — Passenger’s ignorance of baggage liability limit does not affect force of Director General’s regulations.</p> <p>The baggage regulations promulgated by the federal Railway Administration were binding on all passengers, regardless of their lack of knowledge of the regulations or the failure of carrier to inquire as to the value of the baggage.</p> <p>3. States <&wkey;4 — Rule as to paramount authority of federal government held to relate only to war measures.</p> <p>The principle that the authority of the federal government is paramount, when exercised as to subjects which may be regulated either by the United States or by the states, governs the relations of the state and federal government only when confined to war measures in which the means for defense must prevail over everything that may interfere therewith.</p>

B. Minor, Judge. Action by C. A. Verble against C. E. Schaff, as receiver of the Missouri, Kansas & Texas Railway Company of Texas, to recover damages for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>Appeal from District Court, Floyd County; R. C. Joiner, Judge.</p> <p>Trespass to try title by E. R. York against W. A. Robbins and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Lubbock County Court; P. E. Brown, Judge.</p> <p>Action by W. L. McCrummen against the Panhandle & Santa Fé Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

G. Gillis, Judge. Action by Mrs. Era Cobb and husband against Walker D. Hines, Director General of Railroads, in which John Barton Payne, Agent, was substituted as party defendant. From a judgment dismissing the suit, plaintiffs appeal.

<p>I. Mandamus <@=I4(3) — Commissioners’ court will not be compelled to remove obstruction from road while petition for opening it is pending.</p> <p>The commissioners’ court will not be compelled by mandamus to remove obstruction from certain road where a petition for the opening of the road is pending before the commissioners’ court, in the absence of a showing that it has refused to hear and consider the petition', or has unnecessarily postponed consideration thereof.</p> <p>2. Courts <@=>480(1) — One court will not interfere with another court in the discharge of its duty, unless it is acting arbitrarily, willfully, or corruptly.</p> <p>One court has no right to interfere with the action of another court in the discharge of its duty, unless it is made to' appear that such court is acting arbitrarily, willfully, or corruptly in the administration of justice, or that it has abused its discretion to such an extent as would warrant the court of equity to take cognizance thereof and grant proper relief.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by Ben IP. Wilson against Nicholson & Kasbury. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Grimes County Court; R. M. West, Judge.</p> <p>Garnishment by R. P. Trant against the Iola State Bank. Judgment for plaintiff, and garnishee appeals.</p>

<p>1. Vendor and purchaser &wkey;3269 — Remedies of vendor on default of vendee in executory contract stated.</p> <p>On default of vendee in an executory- contract the vendor has choice of rescinding and recovering the superior title or of affirming and suing for the price with foreclosure of his lien.</p> <p>2. Election of remedies <&wkey;>l4 — Vendor by electing one remedy on default of vendee abandons the other.</p> <p>A vendee by electing to pursue one of his remedies on default of vendee in an executory contract thereby irrevocably abandons the other remedy.</p> <p>3. Election of remedies &wkey;U4 — How long vendor’s fight of election of remedies on default of vendee continues stated.</p> <p>A vendor’s right of election of remedies, on default of vendee in an executory contract, continues after he has brought action to the time of announcement for trial, or- so long as he has the privilege of amending his pleadings.</p> <p>4. Vendor and purchaser <@=285(l) — Vendee’s grantee can recover in trespass to"try title against vendor’s grantee, notwithstanding vendor’s unexecuted judgment for foreclosure of vendor’s lien.</p> <p>Though vendor, on vendee’s default, obtains judgment for foreclosure of vendor’s lien, the vendee holds legal title till sale under such judgment; therefore, in the absence of such sale, the vendee’s grantee can recover in trespass to try title against the vendor’s subsequent grantee; such grantees being in the positions of such vendor and vendee.</p>

<p>1. Appeal and error &wkey;?870(2)&emdash;Order overruling plea of privilege held revie viable on appeal from final judgment.</p> <p>Where order overruling a plea of privilege was made before Acts 85th Leg. (1917) c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903) amending Rev. St. 1911, art. 1903, by providing for appeal from an order overruling a plea of privilege, took effect, defendant was entitled to review of such order on his appeal from the final judgment.</p> <p>2. Venue &wkey;>7&emdash;Statute as to venue held inapplicable to actions on implied contracts.</p> <p>Cotton factor suing grower for balance due of money advanced, on theory that grower was liable therefor under an implied contract, could not sue in county in which contract was made under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 5; such statute being inapplicable to an implied contract.</p>

<p>1. Estoppel <&wkey;52 — Doctrine applied merely to prevent injury to those who have been misled by false statements.</p> <p>The doctrine of estoppel in pais is applied only for the purpose of preventing an injury to those who in the exercise of ordinary diligence to ascertain the truth have been misled by false statements; the question depending on the particular facts of each case.</p> <p>2. Carriers &wkey;>52(2) — Consignee who paid draft with bill of lading before arrival of goods held not entitled to recover on delivery of less goods than represented in bill.</p> <p>Where buyer had knowledge of railroad’s custom to sign bill of lading prepared in advance by shipper, without verification of the cor-rectnesK of the weight of goods stated therein, and was entitled by contract of’sale to examine the goods and verify the goods before payment of the price, and where the bill of lading stated that weights shown therein were “subject to correction,” the buyer, having paid draft with bill of lading attached before arrival of goods at destination, could not recover from railroad the loss sustained on delivery of amount less than that stated in the bill of lading.</p>

<p>Appeal from District Court, Sabine County; W. R. Blackshear, Judge.</p> <p>Action by E. D. Watson against John B. Christensen and others. Judgment for plaintiff, and defendants appeal.</p>

Suit by Carl Gunzer and others against the Stroud Motor Manufacturing Company and others. From an order appointing a receiver, defendant manufacturing company appeals.

A. Childers, Judge. • Suit by B. F. Anderson and others against J. C. Houts, County Judge, and others. From a judgment denying an application for injunction, plaintiffs appeal.

<p>1. Abatement and revival &wkey;>8(2), 9> — Suit to set aside divorce decree held not ground for abatement of action to enforce agreement on which based.</p> <p>A suit to set aside a divorce decree, which adopted an agreement by plaintiff to pay a certain sum annually to his divorced wife for the support of their minor children, is not ground for abatement of a suit by the divorced wife and children to enforce the agreement itself; neither the parties nor the cause of action being identical.</p> <p>2. Divorce &wkey;>323 — Divorce does not relieve father of duty to support ohildren.</p> <p>A divorce does not relieve the father of his natural duty and common-law liability to support his children.</p> <p>3. Divorce <&wkey;297 — Father’s agreement to contribute annually to divorced wife for support of children held valid.</p> <p>A father’s agreement, on the eve of a divorce from his wife, to contribute a given sum annually to support their minor children until the youngest reached 14, is valid; such agreement adding nothing to the obligation already resting on him except to definitely fix the amount of his contributions and the time and duration of the payments.</p> <p>4. Divorce <&wkey;297 — Minor children, whose custody was awarded to divorced wife, cannot enforce husband’s agreement to contribute to their support.</p> <p>In an action by a divorced wife and her children to enforce an agreement of the husband and father to contribute a given sum annually to the children’s support, the court erred in rendering judgment for the children, their mother, as the one to whom their custody was confided and to whom defendant agreed to make the payment, being the only one entitled to judgment.</p> <p>On Motions for Rehearing and to Certify.</p> <p>5. Divorce <&wkey;297 — Void judgment on stipulation for support of child constitutes no bar to further litigation on original cause of action.</p> <p>If a divorce decree requiring the husband to pay a given sum annually to the wife for the support of their minor children, as theretofore agreed between them, be construed as a judgment in personam, and therefor void for want of authority to render it, the original cause of action on the agreement itself was not merged in the judgment, which therefore constitutes no bar to further litigation thereon.</p>

Court, Hardin County; J. L. Manry, Judge. Suit by the Southwestern Settlement & Development Company and others against R. J. Randolph and others, in trespass to try title, in which J. B. Hooks intervened. Defendants’ exceptions were sustained, and from the judgment for defendants, the plaintiffs appeal.

<p>Appeal from Colorado County Court; John C. Hoyo, Judge.</p> <p>Action by F. A. Bruihl against the San Antonio & Aransas Pass Railway Qompany. From judgment for plaintiff, defendant appeals.</p>

<p>1. Courts <&wkey;>l22 — Petition required to show jurisdiction of county court by alleging value of property.</p> <p>The value of the property determining the jurisdiction of the county court in action on notes, and to foreclose the chattel mortgage securing them, the petition must show the jurisdiction by allegation of such value.</p> <p>2. Chattel mortgages <&wkey;283 — Judgment foreclosing lien and for conversion improper.</p> <p>Judgment in action on notes, and to foreclose chattel mortgage securing them, should not be against one personally, joined as having converted part of the property, for the value thereof, and also direct foreclosure of the mortgage lien on the same property.</p> <p>3. Sequestration <&wkey;>20 — Judgment against sureties on replevin bond limited to amount plaintiff is entitled to recover in the suit.</p> <p>In view of the condition of replevin bonds in sequestration proceedings provided by Rev. St. art. 7104, judgment against the sureties may not be for more than plaintiff is entitled to recover in the suit.</p>

Pharr, Judge. Suit in justice court by Gibson Bros, against D. Sims and others, in which Henry Johnson and the Comp State Bank intervened. Prom the judgment rendered by the county court on appeal from a justice court, the interveners appeal. It appears from the record that the suit was commenced in a justice court by “Gibson Bros.’’ as plaintiffs against “D. Sims et al.” as defendants, and that it was on a promissory note for $107, interest, and attorney’s fees.

<p>Appeal from! District Court, Fort Bend County; M. S. Munson, Judge.</p> <p>Action by Sugarland Industries against Burleson & Baker. Judgment for plaintiffs, and defendants appeal.</p>

<p>Schools and school districts <§=»I8 — School trustees, recovering from county funds taken from permanent school fund, entitled to legal interest for period not barred by limitations.</p> <p>Where county took money from permanent school fund, and used it for other purposes, the school trustees of the county, on recovery of the funds so taken, should have been allowed simple interest thereon at the legal rate during the two years preceding the action; the interest prior thereto being barred by limitations, in view of Const, art. 7, § 6, and Rev. St. art. 5402.</p>

<p>1. Appeal and error &wkey;>1012(2) — Finding not set aside because against mere preponderance of evidence.</p> <p>Where there is any testimony to support a finding of the .trial court, it will not be set aside because contrary to a mere preponderance of the evidence unless prejudice or bias or other improper motive is shown.</p> <p>2. Trespass to* try title <&wkey;4I(l) ■— Judgment for defendant held not against preponderance of evidence.</p> <p>In trespass to try title, a judgment for defendant held not against the great weight and preponderance of the evidence.</p>

<p>Appeal from Tarrant County Court; W. P. Walker, Judge.</p> <p>Suit by the Exchange Bank of Port Worth, Tex., against Hensley & Roland, in which the defendants filed a cross-action. Judgment for defendants, and plaintiff appeals.</p> <p>Appellant sued the appellees, a partnership,’ to recover an unpaid balance of $275.25, evidenced by nine promissory notes for $30.-65 each, with interest and attorney’s fees, and for the foreclosure of a chattel mortgage on certain gasoline filling station fixtures given to secure the payment of the indebtedness. Appellant also sued out writs of garnishment.</p> <p>The appellees answered, admitting the execution of the notes and chattel mortgage sued on, but, in rescission of the contract and discharge from liability thereon, pleaded failure of the consideration for which the notés and mortgage were given, which plea was based on the alleged breach of a warranty or guaranty by the bank, made at the time the notes and mortgage were executed, that the property possessed certain qualities. Ap-pellees further, by cross-action, sought to recover damages for the breach of the alleged warranty in the sum of $200 and the $30.65 paid on the notes, and for wrongful suing out of the garnishment writ in the sum of $800.</p> <p>It is shown by the evidence that W. P. White, doing an automobile business as the Glenwood Motor Company, purchased from the manufacturers the following: One 5-bar-rel 14-gauge steel tank; one 5-gallon gasoline stroke pump, type 36; and one 55-gallon lu-</p> <p>bricating oil tank and pump. In order to fully pay to the manufacturers the purchase price of the property, W. P. White made arrangement with appellant bank to borrow the money above the amount of $286, which he had. He executed his note for the money borrowed, payable to the bank, and at the same time executed a chattel mortgage on the property to secure the indebtedness. Upon default made by W. P. White to pay the note at its maturity, the bank instituted suit to collect the debt and for foreclosure of the mortgage, and sued out a sequestration writ. While the suit was pending, and while the property sequestered was in custodia legis, W. P. White went to the appellees, Hensley and Roland, with the view of making a sale to them of his property and business, including the mortgaged property. The appellees were told by Mr. White that the pump had been damaged in the shipment to him, that the personal property in suit was under mortgage with a suit of foreclosure pending, and that the consent of 'the bank to a sale of it would have to be obtained. The appel-lees and Mr. White then agreed on a purchase and sale of all the property, provided the bank would consent to withdraw the suit against the mortgaged property and take the note of the appellees with a chattel mortgage on the same property from them to secure it in the place of the note and mortgage of White then held and sued on by the bank. Thereupon the appellees and Mr. White went to the bank and explained the agreement to the vice president. A discussion there arose between the appellees and Mr. White about the title and defects of the mortgaged property. Finally it was agreed by Mr. White, the appellees, and the vice president of the bank that Mr, White would sell and the ap-pellees would buy the mortgaged property on the terms that the appellees execute 10 notes of $30.65 each, with interest, payable to the bank, and secured by a mortgage on the same property, in lieu and place of the notes and mortgage of Mr. White then held by the bank, and to release Mr. White and dismiss the pending foreclosure suit. At the time of the agreement and as-a part of it the vice president of the hank, acting for the bank, as appellees testify, orally agreed to warrant the title, quality, and condition of the mortgaged property, and this oral agreement was a part of the consideration inducing the agreement. Appellant denied making the oral agreement. The appellant did not own nor have possession of or profess to own the property or any part of it. At the time the agreement was finally concluded Mr. White paid to the bank $75 on his note to the bank and the amount of the court costs of the pending suit against him, and then the appellees executed and delivered to the bank their ten notes for the balance of the White indebtedness to the bank, and also executed and delivered a chattel mortgage on the identical property covered by the White mortgage. In turn the vice president, of the bank surrendered to Mr. White his note and dismissed the suit against him and released him from any further liability. The bank took the notes of appellees and their chattel mortgage given to secure them, in lieu of the White note and mortgage. The property sold appellees by White was the mortgaged property in suit, and; as testified, “The Glenwood Motor Company; that is, the lease on the building and contents.”</p> <p>The jury made the following findings of fact:</p> <p>(1) That the vice president of the bank did orally warrant and guarantee that the mortgaged chattels “were in first-class condition capable of accurately performing the functions for which they were used in a first-class manner and were as good as new ones, wear and tear excepted.”</p> <p>(2) That “the chattels were not in first-class condition, that the pump was defective and would not pump properly, but as to the condition of the tank no evidence was introduced.”</p> <p>(S) That the garnishment writ was not sued out without probable cause.</p> <p>On the verdict the court entered judgment that the plaintiff take nothing by its suit, and that the defendants recover of the plaintiff $30.65, being the amount shown to have been already applied by the bank as a credit on the notes. The appellees made tender of the mortgaged property to the appellant within reasonable time,‘about 20 days after the defective condition, such as found by the jury, was certainly known, as they testify, after a full and fair trial.</p>

<p>Appeal from District Court, Wichita County; John S. Prince, Judge.</p> <p>Suit by the State of Texas against T. P. Barnhill. Judgment for the plaintiff, and defendant appeals.</p>

<p>Trusts <&wkey;210 — Trustee is personally liable on contracts for benefit of trust estate.</p> <p>The trustee is personally liable to parties with whom he contracts, for the benefit of a trust estate.</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Suit by the Continental Investment Company against the Southwest Grain & Hay Company. From an order appointing a receiver, defendant excepts and appeals. Assignment of error sustained.</p>

Eashe, Judge. Suit by Charles S. Basham against Oscar F. Holcombe, as Mayor, and others. From a decree dissolving a restraining order and refusing an application for injunction, plaintiff appeals.

A. Hill, Judge. . 1 Suit by E. W. Riggle against the Magdalena Oil Company, in which T. G. Gray and others intervened. Judgment for the inter-vener Gray for the sum sued for, but decreeing that he had no lien, and denying foreclosure, and from this Gray alone appeals.

<p>Appeal from County Court, at Law, Dallas County; T. A. Work, Judge.</p> <p>Action by the Parisian Hat Company against the American Railway Express Company. Judgment .for plaintiff, and defendant appeals.</p>

<p>1. Electricity @=>ll — Power company held required to supply specified horse power current to city’s current consuming devices at any time required.</p> <p>Where power company’s contract with city provided that the minimum horse power to be furnished city should not be less than 70 horse power, and required the city to pay therefor “$2 for each contract horse power of connected load which payment entitles it (city) to consume 25 kilowatt hours of current for each contract horse power” per month, and the decree in city’s action to enforce performance of contract required the company to furnish the city “a 70 horse power connected load for the operation of its waterworks system and to comply with the contract that has been filed in this cause,” the company was required to supply a minimum of 70 horse power current to the city’s current consuming devices at any time it might be required.</p> <p>2. Judgment @=>89 — Parties by consenting to judgment waive all except fundamental errors.</p> <p>Parties to action by consenting to the entry of a judgment waived all errors except fundamental errors going to the jurisdiction of the court, and became bound by the judgment, regardless of pleadings and evidence.</p> <p>3. Mandamus <§=>7, 187(9) — Granting of writ largely discretionary with court, reviewable only for abuse of discretion.</p> <p>A clear and definite right to mandamus must be diselosed before the writ will issue, the granting of the writ being largely discretionary, to be exercised upon principles-of equity, and, unless it appears that such discretion has been abused, the judgment ordering the writ to issue will not be disturbed on appeal merely because the right to be secured by it is substantially disputed by the adverse party.</p> <p>4. Mandamus @=>133 —Writ requiring power company to maintain current with minimum horsei power available to city at all times held proper.</p> <p>Where a power company under its contract with city, and under a decree rendered in city’s action against company to enforce the contract, required the company to supply a specified minimum of horse power current whenever such current might be required, the court did not err in granting a writ of mandamus requiring the company to keep such horse power available at all times.</p> <p>5. Mandamus @=>l — Use and extent of writ not controlled by agreement of parties.</p> <p>The use and extent to which a writ of mandamus shall issue cannot be controlled by mere agreement of the parties.</p> <p>6. Judgment @=391 — Consent judgment has same force and effect as judgment rendered in contested case.</p> <p>A judgment entered by mutual consent has the same force, dignity, and effect as judgment expressing the result of a contested case.</p>

It. Ewing, Judge. Suit by J. H. Stansberry against J. D. Good and another. Erom a decree against defendant Good on his cross-action, and vesting title to certain premises in plaintiff, the named defendant appeals.

<p>1. Contracts &wkey;270(2) — Contract must be rescinded for fraud promptly upon discovery thereof.</p> <p>A party seeking to rescind a contract for fraud cannot speculate on the situation, but must act promptly after discovery of the fraud; and notice of facts and circumstances which would put a man of ordinary prudence upon inquiry is legally equivalent to a knowledge of all the facts a reasonably diligent inquiry would disclose.</p> <p>2. Exchange of property <&wkey;>5 — Purchaser es-topped from rescinding contract for failure to rescind on discovery of faots putting him on inquiry as to whether conditions were as represented.</p> <p>Purchaser, who did not rescind contract on discovery of facts putting him upon inquiry as to whether conditions were as represented, and who would have discovered misrepresentations if he had made a reasonably diligent inquiry, but who with knowledge of such facts exchanged certificate of ownership for other lands, could not, more than eight years after the original transaction and on discovery of oil on land conveyed to vendor in exchange for the land so purchased, rescind the contract because of such misrepresentations.</p>

<p>Appeal from- District Court, Potter County; Henry S. Bishop, Judge.</p> <p>Action by R. E. Simmons against James Cox Davis, as Director General and Federal Agent. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. Appeal and error (&wkey;28l(l) — Refusal to abate action for dissolution of corporation held' not fundamental error apparent of record.</p> <p>Refusal to abate suit against corporation because of the prior dissolution of the corporation, not affecting the merits or foundation of plaintiff’s cause of action, could not be considered on appeal as fundamental error apparent of record, where the question was not raised on the trial or by motion for a new trial, but merely by motion in arrest of judgment.</p> <p>2. Appeal and error &wkey;>672 — Error which can be ascertained only by consideration of statement of facts, or bill of exceptions not an error apparent of record.</p> <p>An error which can only be ascertained by a consideration of the statement of facts, or bih of exceptions, is not an error apparent of record.</p> <p>3. Death &wkey;>47 — -Petition held to state cause of action against owner of vehicle.</p> <p>A petition, alleging that deceased was hill-ed by the negligent operation on a public street by “the defendant, its agents and servants,” of a seven-passenger touring ear “operated and used by the defendant in its general undertaking business,” held to state a cause of action for death under Vernon’s Sayles’ Ann. Giv. St. 1914, art. 4694, subd. 1, making owner of “vehicle for the conveyance of goods, passengers,” liable for death caused by negligence of owner or his employees, being sufficient to show that the automobile was used for the conveyance of goods or passengers; it being unnecessary under such statute that defendant be a common carrier.</p> <p>4. Death <&wkey;>33 — Proprietor of vehicle liable though not a common carrier.</p> <p>Under Vernon’s Sayles’ Oiv. St. 1914, art. 4694, subd. 1, making the “proprietor, owner, charterer, or hirer of any railroad, steamboat, stagecoach or other vehicle for the conveyance of goods, passengers,” etc., liable for death caused- by negligence of such proprietor, etc., or by unfitness or negligence of employees, a proprietor of such vehicle to be liable need not have been engaged in the business of a public or common carrier.</p> <p>5. Constitutional law <&wkey;48 — Any classification having a reasonable basis upheld against charge of unjust discrimination.</p> <p>Any classification, adopted by the Legislature in the exercise of the police power of the state, which has a reasonable basis, will be upheld against a charge of unjust discrimination.</p> <p>6. Constitutional law <&wkey;48 — Act not declared unconstitutional unless clearly invalid.</p> <p>A state statute will not be declared unconstitutional unless it clearly violates some provision of the state or federal Constitution.</p>

<p>Appeal from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Action by the Texas Pipe Line Company against the Cisco & Northeastern Railway Company and M. A. Wogan. Prom judgment for plaintiff against defendant Railway Company, and from judgment for M. A. Wogan against defendant Railway Company, the Railway Company appeals. Affirmed in’ part.</p>

A. Hill, Judge. Suit by E. M. Sclienecker and others against Mrs. N. O. Bearden and others to remove a cloud on the title to plaintiffs’ oil lease. Decree for plaintiffs, and defendants appeal.

<p>Banks and banking <&wkey; 140 (3) — -Payment by drawee bank of check upon forged indorsement and retention of check after payment not “acceptance” sustaining suit by payee against- drawee.</p> <p>Under Negotiable Instruments Law, §§ 132, 185, 189, 191 (Vernon’s Ann. Civ. St. Supp. 1922, arts. 6001 — 132, 6001 — 185, 6001 — 189, 6001 — 191), requiring an acceptance of a check by a drawee bank in writing to sustain a suit on the check by payee against the bank, a drawee bank’s payment of a check upon a forged in-dorsement, stamping the check “Paid,” and charging the amount thereof to the drawer’s account, does not constitute such an acceptance, nor can the-bank’s retention of a check so paid after payment be deemed such an acceptance, under section 137 (article 6001 — 137), providing that the destruction or refusal to return a bill delivered for acceptance shall be deemed an acceptance.</p> <p>[Ed. Note. — Eor other definitions, see Words ' and Phrases, First and Second Series, Acceptance.]</p>

<p>Appeal from District Court, Montague County; C. R. Pearman, Judge.</p> <p>Action by Mrs. R. H. Harle against the Fort Worth & Denver City Railway Company and another. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District- Court, ' Montague County; C. R. Pearman, Judge.</p> <p>Suit by A. F. Smitli and others against 'j. H.. Bumett and others. From an order appointing a receiver, the defendants appeal.</p>

R. Pearman, Judge. Action by Alex W. Robertson against Ed. I. Key, County Judge, and others. From an adverse Judgment, plaintiff appeals. The court sustained the special demurrers of appellees to the appellant’s petition, and, upon appellant declining to amend, dismissed the suit. The appeal is to revise the ruling of the court.

<p>1. Trial &wkey;o359(l) — Court required to reconcile conflicts in answers on special issues.</p> <p>It is the court’s duty to reconcile apparent conflicts in the answers on special issues if it can be reasonably done in the light of the pleadings and the evidence.</p> <p>2. Railroads <®=o352 — Findings as to accident, at crossing held not contradictory.</p> <p>Special findings that plaintiff failed to reduce the speed of his motorcycle to six miles an hour, though his view of defendant’s track was obstructed, and that such failure was a proximate cause of the collision, and that he could have avoided the collision after he discovered the approach of the train by the exercise of ordinary care, held not to entitle defendant to judgment in view of other findings that plaintiff was not going at an unlawful speed, that up to the time of his discovery of approaching train he was acting as an ordinarily prudent person, that on discovering the train he became so frightened that he was incapable of prudent action, that negligence of defendant was reasonably calculated to produce such fright in the mind of a person of ordinary prudence, and that under the circumstances he did exercise the degree of care of a person of ordinary prudence; the findings not being contradictory, but susceptible of construction that plaintiff exercised the proper care until terrorized.</p> <p>3. Railroads &wkey;>334 — Frightened motorcycle rider held not negligent.</p> <p>Where motorcycle driver was acting with proper care in approach of track at crossing until he discovered approach of train, and became so frightened and terrorized on discovery of train by reason of the railroad’s negligence that he was incapable of rational and prudent action, with reference to avoiding the collision, his failure to exercise ordinary care under the circumstances did not preclude recovery for injuries.</p> <p>4. Negligence <&wkey;>72 — Acts during fright not contributory negligence.</p> <p>No person will be held responsible for his acts or omissions which occur when, through no fault of his own, his mind is in such a state of fright or terror as to render him incapable of acting with ordinary care and prudence.</p> <p>5. Criminal law <&wkey;-!3 — -Motor vehicle law limiting speed at obstructed crossing held void as penal statute.</p> <p>Vernon’s Ann. Pen. Code Supp. 1918, art. 820Z, making a person driving a motor vehicle or motoreyde toward an intersection of a public street or highway with railroad tracks, “where the view of the said crossing is obscured either wholly or partially,” who fails to reduce the speed of the vehicle not to exceed 6 miles per hour at some point not nearer than 30 feet of such track, unless there are flagmen or gates showing the way to be clear, guilty of misdemeanor, held void for uncertainty.</p> <p>6. Criminal law &wkey;cl3 — Statute must define with certainty the act or omission denounced.</p> <p>In order to constitute a crime, the act condemned must be defined with such certainty that the citizen is able to know in advance from the written statute what is the act or omission which is made criminal.</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Suit by the Walker Caldwell Producing Company against A. J. Menefee and E. W. Blank. Prom a judgment for defendant Blank, plaintiff appeals.</p>

<p>Appeal from Cooke County Court; H. S. Holman, Judge.</p> <p>Suit by John B. Martin against Wylie Par-ten. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Young County Court; W. H. Reeves, Judge.</p> <p>Suit by Charles Woolfolk against J. F. McNabb. Judgment for plaintiff, and defendant appeals.</p>

A. Martin, Judge. Action by Brooks Robertson against the Burk Burnett-Mann Oil Company and the Mc-Ton Oil Company. Prom a judgment for plaintiff, the first-named defendant appeals.

W. Akin, Special Judge. Suit by J. N. McCoy and others against W. W. Griffin and others. From a judgment for certain of the plaintiffs, defendants appeal.

Action, by T. C. Rogers and another against Manuel Rogers and others. .Judgment for plaintiffs reversed, and judgment rendered for named defendant by the Court of Civil Appeals (230 S. W. 489), and plaintiffs bring error.

<p>1. Appeal and error <&wkey;l024(3) — Finding on plea of privilege not disturbed.</p> <p>Judgment overruling the plea of privilege to be sued in the county of defendants’ residence cannot be disturbed, it being impossible to say that there was not evidence to support the judgment on the theory of the case being one of fraud, suit for which under Rev. St, art. 1830, subd. 7, may be instituted in the county where the fraud was committed.</p> <p>2. Pleading &wkey;j!li — All testimony on merits not required on hearing of plea of privilege.</p> <p>On the hearing of the plea of privilege, it is not necessary for either party to introduce all the testimony on the merits of the case.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by R. U. Pierce and another against Stanley Boykin and another. From an in-' terlocutory order granting a temporary writ</p> <p>of injunction, defendants appeal.</p>