Volume 241 — South Western Reporter

<p>Appeal from District Court, Montague County; C. R. Pearman, Judge.</p> <p>Action by S. W. King and others against the Chicago, Rock Island & Gulf Railway Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by the Breckenridge-Stephens Title Company against Joe D. Johnson and others, in which defendants filed counterclaim. Judgment for the plaintiff for the amount admitted by defendants on his cause of action and against defendants on their counterclaim, and defendants appeal.</p> <p>The appellee, a corporation formed for making, compiling, and owning abstracts of title to lands, brought the suit against appellants, who are copartners engaged in the business of making abstracts of title to land. The petition alleged:</p> <p>“That heretofore, to wit, during the months of April and May, 1919, defendants had access, to and use of the files, records and abstract, plant, which was the property of plaintiff. It was understood and agreed that so long as defendants were permitted to use said files, records, and abstract plant defendants were to pay plaintiff the sum of 39 cents a page for the use of the same on all abstract's and records prepared by said defendants. That during the months of April and May, 1919, defendants used the same, and compiled more than 5,000 pages of abstract matter therefrom. That because of such use and access and the agreement to pay therefor defendants owe plaintiff $1,500, which defendants have refused to pay and for which suit is brought.”</p> <p>The appellants answered by a general denial and set up a cross-action against the appellee. The cross-action alleged:</p> <p>“That heretofore, to wit, on or about March 20, 1919, these defendants entered into a verbal contract with Luekel-Darnell, Inc., a private corporation under the laws of Texas, with place of business in Breckenridge, Tex.; said company at, the time being engaged in the business of compiling and selling abstracts of title to lands in Breckenridge, Stephens county, Tex., and owning an abstract plant containing indexes to public records of Stephens county, Tex. That under and by virtue of the terms of said agreement the defendants were to have the right to use the indexes and other records of the abstract plant of the said Luekel-Dar-nell, Inc., for the purpose of making, compiling, preparing and selling abstracts of land titles in Stephens county, Tex. That under and by virtue of the terms of said agreement the defendants were to pay the said Luekel-Darnell, Inc., thirty per cent, of all of the money collected from the sale of all abstracts made and sold by said defendants.. That under and by virtue- of the terms of said contract same was to remain in force and effect so-long as the abstract business in Stephens county. Tex., remained and continued more than it normally was prior to the oil boom and activity in said county.”</p> <p>Then follow allegations of an undertaking on the appellants’ part to perform, and a partial performance of the agreement, and then an ouster from a further use of the property, and a breach of the agreement on appellee’s part, and the damages sustained thereby by appellants.</p> <p>In the cross-action the appellee filed a demurrer and special exceptions, and specially answered, pleading that the appellee corporation did not assume any such contract as pleaded; the statute of frauds; and that the contract, if any were made, was terminable at the will of appellee.</p> <p>- The case was submitted to the jury on special issues. The court charged as follows:</p> <p>“You are instructed that the plaintiff charges and the defendants admit that they are indebted to the plaintiff in the sum of $1,035, which was due on or about June 1, 1919. You are therefore instructed to return a verdict for the plaintiff against the defendants in said amount.”</p> <p>The court then submitted for findings special isues on the cross-action of the appellants. On the special issues as submitted the jury made findings in favor of appellant, which included findings of amount of damages. The court entered judgment on the instructed verdict in favor of the appellee, and entered judgment in favor of the appellants as to the sum of $366.75 damages found in special issue No. 8 as a credit on the amount of appellee’s recovery, but against the appellants as to the other item of damages found by the jury. The following appears as the court’s conclusion for the rendition of the judgment:</p> <p>“It is the opinion of the court, and the court so finds, that the agreement or contract as sued upon by the defendants herein in their cross-action is unilateral and lacking in mutuality, and is therefor unenforceable, and that the defendants should and ought not to recover any damages alleged to have been sustained by them thereon save and except such damages as the jury found the defendants did sustain in answer to special issue No. 8, and for this reason, and this reason alone, the court refuses to enter judgment for the item of damage found by the jury in favor of the defendants on their cross-action in answer to special issue No. 9; and by such refusal to enter judgment upon such item of damage it is not intended by the court to find that the finding of the jury in favor of damages and the amount thereof is not a correct finding and is not one warranted by the evidence.”</p> <p>The following evidence was introduced by the appellants in support of the contract alleged. Mr. Walker, one of the appellants, testified that he made a contract with Judge Jackson of Luekel-Darnell, Inc., about March 23 or 24, stating:</p> <p>“The conversation between Judge Jackson and myself was that this contract was to run, that we were to make abstracts, so long as the business was above normal. By that I mean oil business — before oil was struck. Judge Jackson asked, ‘How long — now when shall this terminate?’ I said, ‘When business settles back to where it can be taken care of by the old company; of course it would not pay us to stay any longer, and we would then quit.’ He said, ‘That would be perfectly satisfactory.’ We were to pay him 30 per cent. The pages ordinarily were $1 per page, which would be $30 out of every $100. We were to pay him 30 per cent, of the amount we got from the abstract — 30 per cent, out of every dollar we col-.ected.”</p> <p>On cross-examination he testified:</p> <p>“I could not tell just exactly what I said to Mr. Jackson and what Mr. Jackson said to me, but I will do my best. Joe and I talked when we first met him. We told him that the, abstract business was overrun here, and we talked with him about putting in a new company probably, and then we got down to the contract. We asked him if there were a chance to make a deal with him to obtain the use of his files. He said that he had not thought of it, but there probably would be, because he thought it would be a good thing for the company, and that he would talk to Mr. Bird. He did [talk to Mr. Bird], and we came back later and talked to him. He asked us for 50 per cent. We contended for that for a quite a while. We left the .office and got in a ear. * * * I got out of the car and went back, and when I got back Judge Smith was talking to him about this proposition. Judge Jackson said, ‘We are going to let you boys have it at 30 per cent’ I said, ‘Judge, I will let you know to-morrow or the next day.’ Joe and I talked it over on the way home, and I sat down that day and wrote him \ye would accept the proposition as we had agreed upon.”</p> <p>There is no other evidence concerning the terms of the agreement.</p> <p>There is evidence that the appellants bought supplies and typewriters and on April 2, 1919, began to make, and did make altogether, about 110 abstracts, and collected the price therefor; and on May 1, 1919, paid to appellee $349.90 of the amount collected. On May 24, 1919, appellee notified appellants that they could not longer use the records and indexes, and refused to permit them to do so after that date.</p> <p>The Luckell-Darnell, Inc., was merged into and became the Breckenridge-Stephens Title Company, a private corporation, on March 28, 1919.</p>

Bond, Judge. Suit by P. H. Dismukes against the First National Bank of Kaufman. From judgment for plaintiff, defendant appeals.

<p>Appeal from Young County Court; W. H. Reeves, Judge.</p> <p>Suit by Louis Gasso against Charles M. Dunn. From a' default judgment for plaintiff, defendant appeals.</p>

Steed, Judge. Action by W. H. Gilley against Frank M. Pennington, in which defendant set up a cross-action. From a judgment for plaintiff on his cause of action, and for defendant on his cross-action, in equal amounts, plaintiff appeals. By his suit against appellee, appellant sought to recover possession of two horses he delivered to appellee, or, in the alternative, their value, which he alleged to he $300.

L. Davenport, Judge. Suit by the Elliott Lumber Company against G. B. Mitchell, in which the Clem Lumber Company and Mrs. L. E. Mitchell, wife of the defendant, intervened.

R. Chapman, Judge. Action by C. D. Douglas against Walker D. Hines, Director General of Railroads, in which John Barton Payne, as Director General and Agent, was substituted as defendant. Judgment for the plaintiff, and defendant appeals.

<p>Appeal from District Court, Wise County; F. O. McKinsey, Judge.</p> <p>Action by Riley Erwin by next friend, W. W. Erwin, against the Bridgeport Brick & Tile Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Orange County; W. T. Danis, Judge.</p> <p>Suit by, Alice Harrington and others, against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and the defendant appeals.</p>

E. L. Ray, Judge. Action by the State of Texas and another against the Chicago, Rock Island & Gulf Railway Company. Prom judgment for plaintiffs, defendant appeals.

Suit by the Continental Gin Company against the Thorndale Mercantile Company and others. From an order denying motions of defendant named praying that it be relieved from liability under judgment, and that execution issued on judgment for plaintiff be recalled and canceled, defendant named appeals.

<p>Appeal from District Court, Young County ; H. P. Weldon, Judge.</p> <p>Suit by Elmer Gatewood against J. N. Graves. Prom a judgment for defendant on demurrer, plaintiff appeals'.</p>

<p>1. Corporations <⅞^⅛79 — Cannot form partnership.</p> <p>A corporation cannot form a partnership with another corporation or an individual.</p> <p>2. Partnership <®^>8 — Lease of floor space for percentage of net sales held not to create partnership.</p> <p>A floor space in a store for a percentage of net sales, but not less than a given sum annually and a like percentage of all business in excess of a certain amount, held not to create a partnership, in that there was no sharing in the profits or losses; lessor being entitled to th'e agreed percentage of net sales regardless of whether lessee made a profit.</p> <p>3. Partnership «5=39 — No partnership without joint interest in profits as distinguished from compensation for services.</p> <p>There can be no business partnership unless there is a joint interest in the profits as such, and not merely as compensation for services.</p> <p>4. Corporations <S=»459 — Lease of floor space by dry goods company to millinery company not ultra vires.</p> <p>A dry goods company’s lease of floor space to a millinery company for a percentage of the latter’s net sales to be deducted from its total receipts by lessor is not ultra vires.</p> <p>5. Landlord and tenant <g=n49 (I) — Corporation securing use of floor space for stated term at designated compensation is liable for abandonment as for breach of lease.</p> <p>A corporation securing the use and possession of floor space in another corporation’s building and the use of facilities and services incidental thereto for a stated term in consideration of a designated compensation is liable for failure to occupy the space for the designated time as for a breach of a lease whether or not the contract may be technically termed such.</p> <p>S. Landlord and tenant <©=^48(½) —;Sale of majority of lessor’s stock and purchaser’s advertised intention of changing corporate name held not a breach of contraot leasing floor space.</p> <p>Neither a corporation’s sale of the majorii:y of its stock nor the purchaser’s advertised intention of changing the corporate name was a breach of a contract leasing floor space to another corporation for the display and sale of its goods, in the absence of evidence that the personal popularity of lessor’s principal owners, under whose name the corporation was known, was one of the considerations for the execution of the contract.</p> <p>7. Landlord and tenant <©=>21 i (I) —• Lessee wrongfully abandoning use of leased floor space not entitled) to deduction from rent - because of lessor’s not having to furnish light, heat, and other incidental facilities.</p> <p>A corporation which violated its contract to occupy floor'space leased by it from another corporation for the display and sale of its goods was not entitled to any deduction from the amount due under such contract because of any advantage gained by lessor by not having to furnish lighting for window display, show cases, etc., heat and elevator service and other incidental facilities, including the use of a show window, as agreed, especially in the absence of evidence that the cost of such services in the conduct of lessor’s own business was lessened.</p> <p>8. Landlord and tenant <§=>211 (I)— Lessor's use of window space vacated by lessee held not a ré-entry.</p> <p>. Where a lessee of floor and window space for the sale and display of its goods abandoned the use thereof prior to the expiration of the lease, lessor’s use of the window space gave lessee no right against lessor, where its use was necessary to protect lessor’s business fróm injury.</p> <p>9. Landlord and tenant <§=>80(3) — Sublease held not unenforceable because lessor’s landlord .did not consent.</p> <p>A lease of floor space was not unenforceable because lessor had not obtained the consent of its lessor to sublet where the subles-see was never disturbed in its possession, and no objection was made to its use of the property by lessor’s landlord.</p> <p>10. Landlord and tenant <§==>195(2) — Lessor held not obligated to lease to another for lessee’s protection after it abandoned premises.</p> <p>A lessor of floor space in a dry goods store for the display and sale of millinery was under no obligation to lease the premises to another for lessee’s protection after it abandoned the premises.</p> <p>On Motion for Rehearing.</p> <p>11. Licenses <g=>44(2), 53 — Contract for use of floor and window space held only license, and not a lease, as to window space.</p> <p>Under a contract for floor space in a dry goods store subject to its rules and regulations with' respect to opening and closing for business, With the right to use 10 feet of window space, no designated part of which was set apart, no leasehold was acquired in any of the space, so that lessee was not entitled to compensation for the value of the window space when used by lessor after it abandoned the premises, its right thereto being a mere license while it continued to occupy the floor space, and the rule against subletting without the owner’s consent was inapplicable.</p>

<p>Appeal from District Court, McLennan County; Erwin J. Clark, Judge.</p> <p>Action by the Second National Bank of Hoboken, N. J., against George S. McGehee and others.</p>

D. Guinn, Judge. Trespass to try title by Stanley Banks against J. W. P. Land. Judgment for plaintiff fo'r recovery of the land, but allowing defendant the cost of improvements made thereon in good faith, and defendant appeals from the judgment awarding the land to plaintiff, and plaintiff files cross-appeal from the judgment awarding the cost of the improvements.

L. Davenport, Judge. Suit by the Guaranty State Bank & Trust Company against W. R. Blocksom, Fred G. Bearee, and Wilkie Carter, wherein defendants Blocksom and Pearce filed a cross-action against plaintiff, and defendant Carter filed a cross-action against defendants Blocksom and Pearce. From a judgment for plaintiff against defendants, and for defendant Carter on his cross-action, defendants Blocksom and Pearce appeal.

<p>1. Sales <®=3i84 — Contract construed as In force when buyer notified seller that unless oil was loaded in 48 hours other oil would be bought to fill contract.</p> <p>The terms of a contract construed as being in force at the time the buyer notified the seller that, unless the car of oil was loaded in 48 hours, buyer would buy for the account of seller a car of oil to fill its contract unless seller had theretofore in time and manner as provided canceled the contract.</p> <p>2. Customs and usages <S= 19(3) — Decision that contract was not canceled by correspondence held supported by sufficient evidence.</p> <p>Finding that there was no custom among those dealing in cotton seed products, that notice by seller to buyer that another had refused to load the car of oil bought except at the then market price was a notice that the sale contract was canceled, held supported by sufficient evidence.</p> <p>3. Sales <®=>225(4) — Buyer held not to have transferred rights to third persons so as to prevent his suit for breach of contract.</p> <p>Evidence held not to show that buyer had sold all its interest in sale contract to a third person to whom the oil was to be delivered, so that buyer had not transferred its cause of action for breach of contract to such third party.</p> <p>4. Sales <6=>4I8(7) — Buyer held to have, reasonable time after notice in which to purchase oil aftty- seller’s failure to deliver.</p> <p>Where buyer had right, upon seller’s failure to deliver oil, to purchase other oil after giving 48 hours’ notice of his intention to do so, buyer had a reasonable time after the expiration of the 48 hours’ notice to purchase the oil, and, in the absence of evidence relative to opportunities to purchase, 2 or 3 days will not be held an unreasonable time in buyer’s action for the difference between the price paid for such oil and contract price.</p> <p>5. Witnesses <6=31255(1) — Witness may refresh his memory as to market price from market quotations regularly issued. •</p> <p>A witness testifying to the market price of a mercantile commodity on a certain day may refer to and refresh his memory from market quotations regularly issued as to the particular price of such commodity.</p> <p>6. Witnesses <⅜=>255(4)— May refresh recollection as to price by reference to circular of United States Food Administration.</p> <p>A witness may refresh his recollection of certain facts by written memoranda which he knew showed the truth relative to such facts, or matters, if by such assistance his recollection can be stimulated and refreshed so as to make it a distinct and actual present recollection, and it is not necessary that such mem-oranda shall have been written by witness, so that a witness might refresh his memory as to prices fixed by reference to the circular of the United States Food Administration.</p>

R. Bishop, Judge. Action by Gladys Hutcherson, for herself and as guardian of her minor children, against the Sovereign Camp of the Woodmen of the World. Judgment for defendant, and plaintiff appeals.

<p>Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.</p> <p>Suit by W. C. Walker and others against A. S. Walter and others. From an order overruling defendants’ motion to dissolve an injunction, they appeal.</p>

<p>Appeal from District Court, Wichita County; E. W. Napier, Judge.</p> <p>Action by Willie Billings against Oscar Williams and the Western Union Telegraph Company. Erom a directed verdict for the Telegraph Company, plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Suit by the Houston National Exchange Bank against J. S. Herring and others. From judgment granting injunction, defendants appeal.</p>

<p>Appeal from District Court, Williamson .County; Ireland Graves, Judge.</p> <p>Action by the First State Bank & Trust Company of Taylor against George C. O’Brien, administrator of the estate of Mary E. Henderson, deceased. Prom judgment for plaintiff, defendant appeals.</p>

Error from District Court, Hardin County; J. L. Manry, Judge. Action by Y. A. Petty and others against the Paggi Bros. Oil Company and others. Judgment for defendants, and plaintiffs bring error.

L. Davenport, Judge. Suit by the Commercial Acceptance Trust against Earl Parmer and T. W. Stephens, in which defendant Stephens pleaded a cross-action for damages by reason of the sequestration writ issued at the instance of the plaintiff. Judgment for both defendants upon plaintiff’s cause of action, and for the defendant Stephens upon his cross-action, and .plaintiff appeals.

L. Davenport, Judge, Action by D. S. Rumph and others, trustees of the Consolidated Oil Company of Texas, against C. C. Greenlee and another, partners. Judgment for plaintiffs, and defendants appeal.

M. Blackman, Judge. Suit by the Teague Independent School District against the First State Bank of Teague and others. From judgment denying plaintiff relief as to the named and some of the unnamed defendants, the plaintiff appeals.

E. Monteith, Judge. Trespass to try title between Minnie Ret-tig and others and the West End Realty Company and others. From a judgment awarding to the West End Realty Company the interest in the land claimed by it, Minnie Rettig and others appeal.

<p>1. Injunction ©=326(1) — Prosecution of action not restrained where defendant can appeal.</p> <p>Injunction is not a proper remedy to restrain the prosecution of an action where defendant in-such action has a remedy by appeal.</p> <p>2. Injunction ©=26(4) — Equity may enjoin bringing multiplicity of actions.</p> <p>Equity may enjoin the bringing of separate suits to vex and harass defendant by a multiplicity of actions when plaintiffs’ demands can all be disposed of in one suit.</p> <p>3. Injunction ©=26(4) — Several actions enjoined only on showing that matters may be determined by one.</p> <p>Before several actions at law will be enjoined in order that the controversies may be determined in a single suit, it must appear that the different suits may be determined by the settlement of one or more issues of law or fact common to them all.</p> <p>4. Injunction ©=II8(I) — Application must show right to relief.</p> <p>An. application for injunction should show affirmatively that applicant is entitled to the relief sought, and the petition must negative every reasonable inference that might be drawn from the facts stated which would justify re--fusal.</p> <p>5. Evidence ©=474½ — Fraud not proven by opinion evidence. '</p> <p>In an action to declare void a bond issue, where defendant sought to enjoin plaintiff from bringing the action, alleging that it was brought for the purpose of harassing defendants, opinion of witnesses that the suit was not brought in good faith and was brought for the purpose of hindering and delaying the building of roads was inadmissible.</p> <p>6. Injunction ©=l 18(1) — Allegations of cross-action held insufficient to justify enjoining actions as intended to harass plaintiff.</p> <p>In an action to declare a bond issue void, defendants’ cross-action, alleging that they believed there was a concerted action by plaintiff acting with other parties who had filed suits, to prevent roadwork from going forward, and that plaintiffs were willing to sacrifice the roads and best interests of the citizens, and especially citizens residing along a named highway, and that by reason of such unwarranted acts asked injunction to prevent plaintiffs and other persons from harassing and filing unwarranted suits against defendants, held insufficient to justify injunction.</p> <p>7. Counties ©=173(2) — Merely holding election authorizing bonds creates no debt against county.</p> <p>The holding of an election authorizing the issuance of bonds does not create an indebtedness against a county, and in order to create the debt represented by bonds such bonds must be ordered issued, lithographed, approved by the Attorney General, registered by the Comptroller, etc., and sold.</p> <p>8. Counties ©=l 83(1) — Where bond issue authorized by election county may issue as needed.</p> <p>A county, when «authorized by election to issue bonds, may issue them as needed within a reasonable time.</p> <p>9. Counties ©=l73(2)~Bond issue for roads held unauthorized by constitutional or statutory limitation.</p> <p>Where an election held August 21, 1919, authorizing bond issue ■ for roads was carried by a two-thirds vote, and in 1920, when the assessed value of real property was $22,558,195, and of all property $55,134,958, an issue of $800,000 of the bonds in 1920 was n.ot in violation of Const, art. 3, § 52, or article 8, § 9, or of any statute, including Special Road Law of Eastland County, § 20, limiting bond issues, and in 1921, when the total assessed value of all property was more than $57,000,000, an issue of $4,500,000 of bonds was not in violation of article 3, § 52, nor Rev. St. art. 613.</p> <p>10. Constitutional faw @=o45 — Statutes <®=>224 —Different provisions or articles construed to give effect to both.</p> <p>If two provisions of the Constitution or two articles of the statutes can reasonably be so construed as to leave both of them effective, such construction should be adopted.</p>

<p>Appeal from District Court, Young County; H. F. Weldon, Judge.</p> <p>Trespass to try title by W- C. McGee against R. D. Rutherford, as guardian, and another, and a suit by R. D. Rutherford, as guardian, against W. O. McGee to foreclose vendor’s lien notes and to recover an interest in the land, which were consolidated for trial. From a judgment awarding the land to McGee, subject to the payment of the vendor’s lien .notes without interest from the date of tender and without attorney’s fee, Rutherford appeals.</p>

McCullough, Judge. Action by J. A. Wilson against the Southern Traction Company. A judgment for plaintiff was reversed, and the cause remanded by the Court of Civil Appeals (187 S. W, 536), and plaintiff brought error to the Supreme Court, which reversed the judgment of the Court of Civil Appeals (234 S. W. 663), and remanded the cause for determination of an assignment of error not ruled upon. Decision of the Court of Civil Appeals upon remand.

<p>1. Vendor and purchaser <S^3 (4) — Vendor not liable for fraudulent representations made in sale by his purchaser.</p> <p>Where a person contracted with a landowner to sell to him such lands from a tract as he should call upon the landowner to convey to him, and agreed to advertise and promote sales which could be made to whomsoever he chose at whatever prices and upon whatever terms he chose to give, the agreement was an option contract for the purchase of land, and on knowledge of such relation by purchaser of the lands from the person so contracting the landowner cannot be held responsible for fraudulent representation made in the sale.</p> <p>2. Vendor and purchaser <§=^307 — Breach of covenant to supply water for irrigation of land bought held not a failure of consideration of the purchase-money notes.</p> <p>In a sale of land where a vendor contracted that an irrigation system would be extended to the land, and that an irrigation company would execute with the purchaser a permanent water rights contract to convey to him the permanent right to demand and receive water in sufficient quantities to properly irrigate the land when cultivated, in a suit by the vendor against a vendee of the purchaser on notes given by the purchaser and assumed by the purchaser’s vendee, failure to supply a sufficient amount of water for irrigating crops does not amount to a failure of consideration, but was only a breach of covenant.</p> <p>Oobbs, J., dissenting.</p>

E. L. Roy, Judge. Action by George B. MeCamey against the Hollister Oil Company, Warren H. Hollister,, William Hettesheimer, and Charles J. Geiser. Judgment for plaintiff against the defendant company and the individual defendants as trustees, but denying personal judgment against the individual defendants, and. plaintiff appeals.

<p>1. Mines and minerals <®^57 — Deed of land by third parties possibly including that covered by abstract of land sold, held valid objection to title of lessors.</p> <p>As respects sufficiency of title of lessors of oil and gas rights in a certain 80 acres, the presence in the abstract of a deed by third parties conveying part of about 118 acres of the same survey, and reciting the sale thereof to such grantors by the party from whom lessors’ title to the 80 acres was deraigned, was a valid objection, where it could not be certainly determined from such deed, that the 118 acres did not include the 80 acres.</p> <p>2. Mines and minerals @=357 — Objection to description, as set out in instruments in chain of title of lessors, held1 not an objection that, description In prior deed1 by third parties • might have included land in issue.</p> <p>As respects a proposed gas and oil lease of land, an objection to the title to the land as shown by an abstract on the ground of the indefiniteness of the description in the instruments in which it was set out did not constitute an objection on the ground that it could not be certainly determined, from a deed by third parties of part of the same survey, reciting the sale thereof to such grantors by the party from whom title to the land covered by the abstract was deraigned, that the land conveyed by such deed did not include that covered by the abstract.</p> <p>3. Mines and minerals <S=»57 — Possibility that land leased was included in deed by parties claiming under lessors’ predecessor no excuse for lessee’s rejection of title in absence of objection on such ground.</p> <p>As respects a proposed gas and oil lease of land, that a deed by third parties claiming to be grantees of party* from whom title to land in question was deraigned may have been a cloud on lessors’ title, in that it did not certainly appear from such deed that the land-thereby conveyed did not include their land, did not warrant a judgment for lessee in les-? sors’ action for breach of contract to pay a stipulated sum when lessors furnished an abstract showing good title and cured valid objections stated by lessee, where no such objection was stated by lessee.</p>

<p>Appeal from District Court, Robertson County; W. C. Davis, Judge.</p> <p>Action by M. R. McMillan against James C. Davis, Federal Agent, for damages to shipment of mules. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Montague County; C. R. Pearman, Judge.</p> <p>Action'by W. D. White against Montague County and others. From judgment for plaintiff, defendants appeal.</p>

<p>1. Customs and usages «⅜=>5 — Custom of paying time deposits of Mexican money in Mexican hank biiis hold admissible in action to recover American money.</p> <p>In an action against a hank to recover a deposit of Mexican money, the prayer being for silver money or its equivalent in American money, defendant was properly permitted to introduce evidence of a general course of dealing between bankers and depositors in the locality wherein time deposits of Mexican money were paid in Mexican bank bills rather than in current funds of the United States.</p> <p>2. Customs and usages Office of custom or usage.</p> <p>The chief office of custom or usage is to arrive at and determine the intention of the parties in connection with matters on which the contract is not clear and explicit.</p> <p>3. Customs and usages <3=>l — “Usage” comprehends habits and course of dealing.</p> <p>“Usage” comprehends the habits, modes, and course of dealing generally observed either in any particular trade or in all mercantile transactions.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Usage.]</p> <p>4. Customs and usages <3=>3 — Usage must be established, known, reasonable, and legal.</p> <p>A usage must be established, known, reasonable, and in consonance with law.</p> <p>5. Appeal and error <3=3931 (6) — Presumed that trial judge regarded competent testimony only.</p> <p>Where there was no jury, the presumption prevails that the trial judge gave weight to legal testimony alone in rendering his judgment.</p> <p>On Motion for Rehearing.</p> <p>6. Customs and usages <3=>il9<(3)— Evidence held sufficient to establish custom of treating Mexican paper money as commodity.</p> <p>In an action against a bank to recover a deposit of Mexican money in Mexican silver dollars or their equivalent in American money, evidence ¡field sufficient to establish a custom and usage whereby Mexican paper money was treated as a commodity, and deposits of paper money always paid in paper.</p> <p>7. Customs and usages 9(3)— Evidence held sufficient to show knowledge of custom of banks to treat Mexican paper money as commodity.</p> <p>in action against bank to recover deposit of Mexican paper money in silver dollars or their equivalent in American money, evidence field sufficient to sustain a finding that plaintiff had knowledge of a custom of banks and depositors in treating Mexican paper money as a commodity and always repaying deposits thereof in paper.</p> <p>8. Evidence —Not judicially known that no Mexican hank notes existed at certain time.</p> <p>It is not judicially known that there were no Mexican bank notes before 1902.</p> <p>9. Customs and usages <§=?12(2) — Depositor bound by customs and usages of which ignorant.</p> <p>The known customs of banks and their ordinary modes of transacting business must be understood as having governed a bank and a depositor, though the depositor had no actual notice of them.</p> <p>10. Banks and banking <@==>¡53 — Deposit of American money general deposit, but deposit of foreign money special deposit.</p> <p>If a deposit of American money is made in a bank, ordinarily it must be taken as a general deposit creating the relation of debtor and creditor, but, if the deposit is of foreign money, the presumption that it was a general deposit cannot be indulged, and an express understanding to that effect must be shown.</p>

<p>Appeal from District Court, Coleman County; J. O. Woodward, Judge.</p> <p>Suit by O. B. Manes against the J. I. Case Threshing Machine Company. Judgment for defendant, and plaintiff appeals.</p>

M. Terrell, Judge. Action by A. V. Boswell and wife against John Barton Payne, Agent. From judgment for plaintiffs, defendant appeals. Appellees’ suit against appellant was for the value of a trunk and its contents (alleged to be $1,047.25) carried from Memphis to Childress, over the Fort Worth & Denver City Railway, while it was operated by the Director General of Railroads.

E. Monteith, Judge. Suit by Edward S. Boyles against John W. Bray and others, in trespass to try title. Directed verdict and judgment for plaintiff, and defendants appeal.

D. Harvey, Judge. Action by Isadore Leon against the General Oil Company, H. A. Kibby, and others. From a judgment granting a perpetual injunction against defendant Kibby and others, those defendants appeal.

B. Hopkins, Judge. Suit by Hester McLean individually and as administratrix of the estate of W. E. McLean, deceased, for the benefit of herself and as next friend of deceased’s minor child, Helen Josephine McLean, against the St. Louis, Brownsville & Mexico Railway Company and another, in which James C. Davis, Director General of Railroads and Agent, answered and defended. Judgment for the plaintiff, and the defendants appeal.