Volume 248 — South Western Reporter

Cook, Judge. Action by Brown & Co. against the St. Louis .Southwestern Bailway Company of Texas. Judgment for plaintiffs, and defendant appeals. The appellees brought the suit to recover the value of 28 head of hogs alleged to have escaped from the railway stock pen and strayed away by reason of the negligent maintenance of the stock pen by the railway company.

R. Price, Judge. Mandamus by W. Y. Howze to compel the City of El Paso and its Assessor and Collector of Taxes to accept a tender of and issue a receipt for taxes. From a mandatory order so directing, defendants appeal.

R. Price, Judge. Proceeding by the City of El Pado, by intervention in a receivership proceeding, against the Tri-State Association of Credit Men, and J. B. Watson, receiver, to establish a demand for taxes, penalties, and interest due on property in the hands of the receiver. From an order allowing its claim in a sum less than that demanded, the City appeals.

H. Stark, Judge. Trespass to try title by the Southwestern Settlement & Development Company and others ^'against Charley Stanburg and ¡wil’e. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.</p> <p>Suit by Frank Liberto and others against Samuel S. Sanders and others. From a judgment for plaintiffs against defendant named and Stella Sanders, but dismissing complaint against other defendants, and from an order sustaining defendant Gonzales State Bank & Trust Company’s and others’ demurrer to petition, plaintiffs appeal.</p>

<p>Appeal from District Court, Ellis County; W. L. I-Iarding, Judge.</p> <p>B. L. Lovel was convicted of murder, and he appeals.</p>

<p>Error from .District Court, Brewster County; Jos. Jones, Judge.</p> <p>Action by Mrs. A. E. Warren against N. B. Fisk and wife. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Gaming <®=o49(l) — Contract for future delivery not presumed gambling transaction.</p> <p>A contract for the future delivery of cotton or other commodity is not presumed to be a gambling transaction.</p> <p>2. Gaming <§==> 12 — Contract to deliver at future date not invalid.</p> <p>A bona fide agreement mutually to deliver cotton at a fixed price, on a day certain, is not invalid, as one dealing in “futures” under Pen. Code 1911, arts. 538-547.</p> <p>3. Principal and surety <g=»35 — Extension of time sufficient consideration for execution of note by surety.</p> <p>The execution of a note by a surety to secure the payment of a previous' obligation was supported by a sufficient consideration, where there was a 12 months’ extension of time granted the principal.</p>

A. Childers, Judge. Suit by Mrs. Jennie Farrier and others against C. M. Caldwell and others. From a judgment denying a change of venue to another county, defendants appeal.

Error from District Court, Deaf Smith County; Reese Tatum, Judge. Action by Ray Thompson and another against T. L. Camp and another, doing business as the Denby Truck Company. Prom judgment for plaintiffs, defendants bring error.

<p>Appeal from Brewster County Court; M. S. Burke, Judge.</p> <p>Action by J. S. McSpadden against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Infants <©=>!0 — Married minor held entitled to rescind purchase contract of home.</p> <p>A marrier minor, who purchased a home, held entitled, on attaining his majority, to rescind the contract and on returning the premises to recover his payment, less the reasonable value of their use.</p>

<p>1. Mechanics’ liens <@==>197 — Purchaser before lien fixed1 takes subject to lien.</p> <p>One who purchases property and pays value therefor without actual notice of the claim of others as to labor or materialmen’s liens before the time has expired in which to fix the lien, takes the property subject to such lien, under Rev. St. art. 5628.</p> <p>2. Fixtures <@=tl 5 — Casings and machinery held trade fixtures.</p> <p>Casings, machinery, and appliances used in the drfiling or operating of a well are trade fixtures and subject to removal.</p> <p>3. Mechanics’ liens <§=>I36(I) — Affidavit need not describe land on which personalty situated.</p> <p>In a materialman’s lien upon personal property, the affidavit under Rev. St. art. 5624, need not contain a description of the land upon which the personal property is located.</p>

<p>1. Railroad's <§=63 — Right of way acquired by adverse possession.</p> <p>The right to have and enjoy a right of way is shown where the railroad has had adverse use and occupation continuous and uninterrupted for the statutory period of 10 years.</p> <p>2. Easements <8=5 — Burden of proof on claimant.</p> <p>One claiming an easement adversely without contract or express grant must show open and peaceable possession for the full statutory period, at least implied acquiescence of owner, and that possession was exclusive, uninterrupted, continuous, and under claim of right adverse to the owner, and that the owner was free from legal disability during the prescriptive period.</p> <p>3. Railroads <§=!63 — Evidence held to show acquisition of right of way by adverse possession.</p> <p>Evidence held sufficient to show defendant railroad company and its predecessors used a right of way for over 10 years during which it had open and notorious possession under claim of right adverse to the owner.</p> <p>4. Infants <§=24 — Evidence held sufficient to negative minority of owner during prescrip- • five period.</p> <p>Evidence held sufficient to show that plaintiff during the prescriptive period was not under disability of minority where assuming that he was only one day old when his father died in 1887, he would be over 21 in 1910 when the adverse possession commenced, and over 35 in 1920 when the prescriptive period was complete.</p> <p>5. Adverse possession <§=57 — Insane persons <§=59 — Claimant need- not prove owner’s .sanity during prescriptive period, nor that he was not under disability of insanity.</p> <p>To establish adverse possession the claimant is not required to prove the owner- free from disabilities of insanity or imprisonment during the prescriptive period, since sanity and obedience to the law are presumed.</p> <p>6. Adverse possession <§=55 — Delay in probate of will under which owner takes is not disability interrupting continuity of possession.</p> <p>Under Rev. St. art. 5675, the owner or claimant of land must to avoid the bar of limitations institute suit against one claiming adverse possession within ten years next after the cause of action shall have accrued, which is-the time when the adverse possession has commenced, unless he is excepted under article 5684 because of legal disability of coverture, infancy, insanity, or imprisonment, and delay in probate of a will under which he is a dev-isee does not lift the bar.</p> <p>7. Wills <§=1722 — Title of devisee not dependent upon probating of will.</p> <p>Devise takes effect upon the death of testator unless otherwise directed, and the title of the devisee is not affected by the delay in probating the will, and, though a will cannot be used as evidence of title in view of the provisions of the statute until after it is probated, the existence of a cause of action to try title is not dependent thereon.</p>

<p>Appeal from District Court, Dallam County; Reese Tatum, Judge.</p> <p>Action by George C. Webster against J. E. Nunn. 'Judgment for defendant, ^.nd plaintiff appeals.</p>

<p>' Error from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by Amadeo S. Hubbard against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant brings error.</p>

B. Ely, Judge. Suit by D. B. Evans and others against Susan Smoot and others, in which defendants Mrs. Birdie O. Evans and others cross-complained. From a judgment for cross-complainants, plaintiffs appeal.

<p>1. Appeal and error t&wkey;499(3) — Objections to evidence must be reserved by bill of exception.</p> <p>Objections to evidence must be reserved by bill of exce'ption, or they are not reviewable on appeal.</p> <p>2. Appeal and error &wkey;>23l (5)— Objection to evidence as “immaterial, irrelevant, and inconsistent” will not raise the question that it impeaches another witness for the same party.</p> <p>An objection to evidence as being “immaterial, irrelevant, and incompetent, and therefore prejudicial,” is insufficient to raise the question that it contradicts and in' effect impeaches a witness already called by the same party, and such objection, not specifically raised below, cannot be heard on appeal.</p>

<p>1. Trial <§=352(4)— Refusal to submit special issue as to whether damage occurred from inherent vice in stock shipped not error.</p> <p>In, action for injuries to stock alleged as caused by defendant’s failure to furnish cars for prompt shipment and negligent handling in transportation, where there was no evidence to show that they were affected .with disease of any kind, notwithstanding there was evidence showing that some cattle had died on the trip to the railroad, in view of a charge as to whether the damage was caused as the sole result of the cattle being too weak to stand the railroad trip, refusal to submit a special issue as to whether the damage occurred by reason of inherent vice in the stock not the negligence of defendants was no error.</p> <p>2. Appeal and error <§=>1062(2)— Refusal to submit special issue as to whether there was market value for cattle at destination not prejudicial error.</p> <p>In action for injuries to cattle shipped over defendant’s railroad, where material inquiry was whether there was a market value for the cattle at destination at the time of their arrival, it being doubtful whether the evidence raised such an issue, in view of an answer to a special issue finding that the cattle that died at the end of transportation were worth $50 a head, considerably less than the value given by any of the witnesses, there was no prejudicial error in refusal of 'a special issue as to whether there was a market value for cattle of the kind and quality of plaintiffs’ at the date of their arrival at destination.</p> <p>3. Trial <§=>352(4) — Refusal of special issue as to whether shipper was contributorily negligent in fastening gates of cattle pens not error.</p> <p>In action for injury to cattle in transportation, where it was alleged that the railroad company negligently failed to fasten its gates on its stock pens so as to hold the cattle, thereby permitting tbeir escape, where the evidence did not raise an issue as to contributory negligence of plaintiff, there was no error in refusing a special issue as to whether plaintiff was guilty in the manner and way of fastening the gates at the time he put the cattle in the pens.</p> <p>4. Trial @=»352 (4) — Refusal to submit speculative issue not error.</p> <p>In action for injury to cattle in transportation, there was no error in the refusal to submit an issue as to whether the cattle in question would have been shipped through without damage had they been loaded and shipped on the day that they arrived at the railroad, which issue was speculative and foreign to issues made by the pleadings.</p> <p>5. Carriers <®=»228(3) — Evidence as to number of calves lost tbei next spring from cows held , relevant to issue of damage to cows.</p> <p>In action for injuries to cattle, wherein plaintiff did not seek recovery for value of calves lost, and there was no issue that would permit such recovery, but therfe was testimony that the negligence, want of feed and water, and exposure complained of would tend to cause cows bearing calves to lose them and thus injure the cows, evidence as to the number of calves he lost the next spring from the cows was relevant to the issue of the damage to the cows.</p> <p>6. Appeal and error @=>1068(5)— Refusal of instruction as to extra feed bill and cost of gathering cattle harmless in view of verdict.</p> <p>In action for injuries to cattle shipped over defendant’s railway, where it was alleged that on account of defendant’s negligence in failing to fasten the gates of its stock pens the cattle escaped, necessitating an expense of gathering them, and on account of defendant’s failure to furnish cars extra feed was required, notwithstanding there was no evidence that such expense was reasonable, in view of defendant’s request of an issue which required a finding as to whether the expense was reasonable, which the jury answered, affirmatively, and of the exclusion of such items from the judgment, any error in refusal of an instruction not to allow damage for the items on the ground that there was no evidence that such expense was reasonable was harmless.</p> <p>7. Appeal and error @=>1078(1) — Failure to brief assignment waiver thereof.</p> <p>The failure to brief assignments of error is a waiver thereof.</p>

<p>1. Insane persons <§=586 — Return of consitfer-ation still possessed prerequisite to rescission of transaction.</p> <p>It is a prerequisite to a rescission of a transaction on the ground of incompetency that the incompetent repay or tender the portion of the consideration he still has and account for such portion as he has used for necessaries.</p> <p>2. Insane persons <§=566 — Prayer for general equity may take place of tender or money or property as prerequisite to recovery.</p> <p>In an action to rescind transaction of an insane person, where general equity was sought, it was unnecessary for; the plaintiff to tender as a condition precedent to recovery the consideration received and possessed.</p> <p>3. Insane persons <3=>£)8, 99 — Burden of proving money loaned to insane person was used for necessaries on lender; question held for jury under evidence.</p> <p>Whether money loaned to an insane person was used for necessaries held, under the evidence, for the jury; the burden of proof of such issue being on the lender.</p> <p>4. insane persons <3=566 — Upon rescission of contract to borrow money, lender must be placed in statu quo as to all money used for necessaries.</p> <p>A contract of an insane person is not void but voidable; held, however, that before a contract under which an insane person has borrowed money can be rescinded he must place the lender in statu quo in respect to all of the money used for necessaries, though not otherwise.</p> <p>5. Interest <§=> 10 — Recoverable on money loaned insane person for necessaries.</p> <p>Interest is recoverable on money loaned to insane person and used for necessaries.</p> <p>6. Insane persons <3=506 — Lender of money to insane person held entitled to recover only portion used for necessaries.</p> <p>In an action to rescind a sale of realty by an insane person, where it appeared that a $10,000 note received as part payment had been pledged by the insane person as collateral for a $5,000 loan with which money he had paid commissions, taxes, and other debts, held, that the pledgee of the $10,000 note was not under any theory entitled to any relief against-the maker of that note, but'was entitled to receive only the amount which had been expended for necessaries out qf the $5,000 loaned by him.</p> <p>7. Insane persons <@=566 — Action to cancel conveyance of insane person held not controlled by statute passing title to spouse with guardianship.</p> <p>An action to cancel the sale and conveyance of realty by an insane person held not controlled by Rev. St. art. 3593, providing that where husband or wife dies intestate or becomes insane, having no issue or separate property, the common property passes to the survivor and no administration or guardianship of the estate of. the insane person shall be necessary, where there was no showing that the conveyances were executed under the provision of the article or pursuant to an adjudication of insanity.</p> <p>8. Insane persons <g=»75 — Items constituting “necessaries” for insane person stated.</p> <p>Within the rule that one lending money to an insane person may recover only the portion thereof used for necessaries, money used in paying debts incurred for food, clothing, medicines, medical treatment, and taxes would be recoverable.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Necessaries.]</p> <p>9. Insane persons <@=599 — Reasonableness of items claimed to be necessaries for jury.</p> <p>Under the rule that one lending money to an insane person may recover only that part used for necessaries, the question of the reasonableness of items claimed to be necessaries is for the jury.</p> <p>On Motion for Rehearing.</p> <p>10. Insane persons <§=>75 — Attorney’s fees In action to cancel conveyance are necessaries, so that borrowed money spent therefor is recoverable by lender.</p> <p>In an action involving the loan of money to an insane person and the cancellation of a sale of realty by him, held, that the attorney’s fees agreed to be paid by plaintiff constituted expenditure for necessaries, which could be recovered by the lender of the money, though the allowance of attorney’s fees for such defendant lender was an improper charge.</p>

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Action by Morris, Graham & Morris against W. L. Tate. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Tarrant County.</p> <p>Action by the W. C. Belcher Land Mortgage Company against M. I. Holland. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Set-off and counterclaim <&wkey;35(t) — Unliqui-dated demands may lie set off against liquidated demands, if arising from same cause.</p> <p>Under Rev. St. art. 1329, providing if a suit be founded on a certain liquidated demand, defendant shall not set off unliquidated or uncertain damages as a defense, where a verified, itemized account for labor performed under a contract has been filed as a liquidated demand by plaintiff, defendant is not precluded from pleading unliquidated claims arising out of the same contract, since article 1330 provides defendant may plead any cause of action arising out of or incident to or connected with plaintiff’s cause of actiou.</p> <p>2. Pleading <&wkey;292 — Statute requiring verified denial of accounts under oath held but rule of evidence applicable to open accounts.</p> <p>Rev. St. art. 3712, providing that where an action is founded on an open account and supported by plaintiff’s affidavit that it is just and true, the same sball be prima facie evidence thereof, unless defendant shall file a written denial under oath, and when he fails to file such denial he shall not be permitted to deny the account, is but a rule of evidence, and its terms are applicable only to open accounts.</p> <p>3. Pleading <&wkey;292 — Held not “open account” within statute.</p> <p>An account made up of an aggregation of items based on a special contract for labor performed ¡held not an open account, within the meaning of Rev. St. 3712, requiring defendant to deny under oath open accounts verified by plaintiff.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Open Account.]</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by the Merchants’ National Bank against Peter Voudouris and others, copart-ners. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Carriers <@=>23 — Liability of carrier for goods irrespective of stipulations in bill of lading held not changed by amendment to statute.</p> <p>Act Cong. Aug. 9, 1916 (U. S. Comp. St. § 8604a), amending Cummins Act March 4, 1915, § 1, regulating interstate commerce, did not change the law that a common carrier is liable to the holder of a bill of lading for the actual loss or damage to goods shipped, and cannot limit such liability' by stipulations in the bill of lading.</p> <p>2. Cemmeree <&wkey;7 — Intrastate shipments governed by state rate and regulations, where not discriminatory against interstate commerce, and limitations of liability in bill of lading invalid.</p> <p>The Interstate Commerce Commission is not authorized to establish rates governing intrastate shipments, where the state rates do not discriminate against nor affect interstate commerce, such intrastate rates being governed by state law and the rules and regulations of the State Railroad Commission, and hence, under Rev. St. art. 70S, a stipulation in the bill of lading on an intrastate shipment, limiting liability of the carrier, is invalid, and recovery of actual value is allowed.</p> <p>3. Carriers <&wkey;!32 — 'The presumption is that goods lost or damaged in intrastate commerce was through carrier’s negligence.</p> <p>In the absence of proof to the contrary, it will be presumed that the loss of and injury to goods in intrastate commerce was caused by the negligence of the carrier.</p>

Terrell, Judge. Suit by the City of Fort Worth and others against the Fort Worth Acid Works and others. From a judgment for plaintiffs, defendants appeal.

<p>1. Appeal and error <&wkey;1093 — Appellate court will reverse, when verdict is based on surmise, suspicion, or conjecture, or is against preponderance of evidence.</p> <p>The weight of the evidence is for the jury, but the Court of Civil Appeals will reverse a judgment on the facts, when it is found that the verdict is based upon mere surmise, suspicion, or conjecture, and is against the preponderance of the evidence.</p> <p>2. Exceptions, bill of &wkey;>43(l) — Bills of exception, filed after expiration of extension of time, will not be considered.</p> <p>Bills of exception, filed after the expiration of time granted by court in an order extending the time within which to file exceptions, will not be considered.</p>

<p>Appeal and error <&wkey; 193(1) — Error only reached by special exception not fundamental.</p> <p>Where alleged defects in a petition could have been reached only by special exception, fundamental error cannot be suggested.</p>

<p>Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.</p> <p>Suit by J. G. Morgan and another against W. A. Worley. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Ellis County; W. L. Harding, Judge.</p> <p>Suit for injunction and specific performance by the Texas Earm Bureau Cotton Association against J. C. Stovall. From a judgment denying a temporary restraining order and dismissing the petition, the complainant appeals.</p>

Error from District Court, Glasscock County; Chas. Gibbs, Judge. Action by Josie Williams and others against J. A. Allen and others. A plea of privilege was overruled, and defendants bring error.

<p>Appeal from District Court, Wise County; F. O. Mc-Kinsey, Judge. T. M. Jackson was convicted of manufacturing intoxicating liquor, and he appeals.</p>