Volume 252 — South Western Reporter

<p>Appeal from District Court, Palls County; Prentice Oltorf, Judge.</p> <p>Action by E. A. Liggett against the San Antonio & Aransas Pass Railway Company. Prom judgment for plaintiff, defendant appeals.</p>

<p>1. Trial <@=>350 (4)—Refusal to submit special issue whether owner authorized broker to find purchaser at first meeting not error.</p> <p>In broker’s action for commission, the court was not required to submit as a special issue the question- whether defendánt on plaintiff’s first visit to his office requested plaintiff to find a purchaser for the property, where plaintiff did not contend that anything said on such visit constituted any part of the contract sued on, and defendant denied any contract.</p> <p>2. Trial <@=>350(4)—Refusal to submit issue whether owner agreed to pay broker commission out of first payment held not error.</p> <p>Where, in a broker’s action for commissions, there was no evidence that $5,750 cash was to be paid as the first installment on the total consideration of $15,750, or that the purchaser was to pay $5,000 cash to the owner and $750 to plaintiff broker in payment of commissions, a special issue at defendant’s request whether he, defendant, agreed to accept $5,000 in cash and pay the broker a commission of $750 out of that $5,000 held not a legitimate one, and refusal to give not error.</p> <p>3. Trial <@=>350(4)—Refusal to give special issue whether owner agreed to take part of cash in notes not error, where defendant denied any trade.</p> <p>Where, in an action by a broker for commissions in procuring a purchaser of defendant’s property, plaintiff testified defendant did not agree to take any part of the cash consideration of $5,000 in notes, and defendant denied any trade at all, the issue was not specifically raised, and it was proper to refuse to submit it.</p> <p>4. Trial (@=^350 (4) — Refusal to submit issue whether owner instructed broker as to manner of drawing notes forming part of consideration held not error.</p> <p>In an action by a broker for commissions in procuring a purchaser of defendant’s property, refusal to submit at defendant’s request special issue whether defendant instructed plaintiff to draw notes forming the consideration held not error, where defendant examined all the terms of contract submitted and suggested no changes to plaintiff, except amount of cash payment and rate of interest, which changes plaintiff made, and in view of jury’s finding on special issues that defendant agreed with plaintiff that latter could secure the purchaser, and that the plaintiff did find a purchaser ready to buy on terms named by defendant.</p>

Action by L. E. Bryant against the St. Louis Southwestern Railway Company of Texas. From judgment for plaintiff, defendant appeals. The appellee brought the suit to recover damages for personal injuries received by him on December 18, 1920, at about two o’clock a. m., while engaged in the performance of his duties as a switchman in the yard of appellant at Texarkana, Tex.

Action by F. W. Strang against Don H. Biggers and others, to enjoin libelous publication. Fl'om an order dissolving a temporary writ of injunction, plaintiff appeals.

Action by C. C. Cannan against W. D. Cerf and others, to enjoin libelous publication. From an order dissolving a temporary injunction, plaintiff appeals.

<p>"insurance 3=^814 — Statutory mode of service upon fraternal Society held exclusive.</p> <p>The mode of service upon fraternal insuri, anee' societies, ,by serving process upon the commissioner of .insurance and banking, prescribed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4844, is exclusive, and an attempted service upon such a society by service upon its secretary is a nullity.</p>

<p>Appeal and error &wkey;>7§8(2) — Error in refusing special issues not shown by appellant’s brief to have been acted, on or requested before jury retired not presented.</p> <p>Assignments complaining of refusal to submit special issues, not shown by appellant’s brief to have been acted on by the court or requested before the jury retired, show no error.</p>

Error from District Court, Delta County; A. P. Dohoney, Judge. Action by F. M. Davis and another, as partners, against the Springfield Fire'& Marine Insurance Company. Judgment for plaintiffs, and defendant brings error.

<p>Appeal from Denton County Court; E. J. Key, Judge.</p> <p>Suit by J. J. Fuller against the Allis-Chalmers Manufacturing Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from ífistrict Court, Freestone County; A. M. Blackman, Judge.</p> <p>Action by J. R. Barnhill against J. A. Watson and others. From an order overruling, a plea of privilege, defendants Watson and Allen appeal.</p>

<p>1. Chattel mortgages <@=>48 — Description of crops held sufficient.</p> <p>Description in a chattel mortgage, including “all crops for 1921,” held-, as respects mortgagor’s cotton crop, sufficiently definite when so treated by the parties.</p> <p>2. Chattel mortgages <@=>47 — Property may be Identified by parol.</p> <p>An indefinite description of property in a chattel mortgage may be shown by parol to be intended to apply to specific property.</p> <p>3. Banks and banking <@=>134(5) — Chattel mortgages <@=>219 — Where mortgaged crop delivered to mortgagee, mortgagee’s redelivery thereof to mortgagor to sell held not to Impair mortgagee’s title; bank could not set off money belonging to third party.</p> <p>Where 'mortgagor actually delivered to mortgagee hank the cotton yard tickets representing the cotton crop covered by the mortgage, the redelivery of the tickets to the mortgagor as bailee to make sale and apply the proceeds upon his note, did not impair the bank’s title to the property or its proceeds; and another bank in which the proceeds of such sale were deposited by the mortgagor in his own name had no right to apply such funds to the mortgagor’s debt to it.</p> <p>4. Trial <@=>139(1) — Peremptory instruction proper, where contrary verdict could; not 'stand.</p> <p>Where, if verdict had been returned for defendant it could not have been permitted' to stand, in view of the evidence, peremptory instruction for plaintiff was proper.</p>