Volume 256 — South Western Reporter

<p>1. Pleading &wkey;>l!l — Controverting plea to plea of privilege sufficient without repeating allegations of pleadings referred to.</p> <p>Under Bev. St. 1911, art. 1903, as amended by Acts 1917, c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), requiring controverting pleas to pleas of privilege to set out specifically- the facts relied upon, such a plea is sufficient if it refers to the pleadings, of the case for allegations of fraud upon which venue is based under article 1830, subd. 7, without repeating them.</p> <p>2. Appeal and error <&wkey;837 (4) — Appellate court could not determine sufficiency of controverting plea referring to unfiled pleadings for fraud allegations.</p> <p>Under Bev. St. 1911, art. 1903, as amended by Acts 1917, c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), requiring controverting pleas to pleas of privilege to set out specifically the facts relied upon to confer venue, the appellate eourt could not determine the sufficiency of allegations of fraud in a controverting plea referring for its allegations to pleadings not on file.</p> <p>3. Pleading <&wkey;lll — Controverting plea to privilege plea referring to abandoned pleadings for fraud held insufficient.</p> <p>Under Bev. St. 1911, art. 1903, as amended by Acts 1917, c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), requiring controverting pleas to pleas of privilege to set out specifically the facts relied upon to confer venue, such plea referring to abandoned pleadings for allegation of fraud was insufficient.</p> <p>4. Venue <&wkey;70 — Failure to introduce pleadings referred to- in controverting affidavit held to render testimony insufficient to support finding as to place of fraud.</p> <p>Where, on the hearing of a plea of privilege, the controverting pleas referred to certain abandoned pleadings for its allegations of fraud, and no other testimony supported the pleas, plaintiff’s failure to introduce such pleadings rendered the testimony insufficient to sustain finding of place of fraud, upon which venue based, in view of Bev. St. 1911, art. 1903, as amended by Acts 1917, c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), requiring controverting pleas to pleas of privilege to set out specifically the facts relied upon to confer venue.</p>

H. Stark, Judge. Suit by the Millers’ Indemnity Underwriters against Cordelia Hughes and others to set aside an award of compensation by the Industrial Accident Board for the death of J. W. Hughes, employee. Judgment for defendants, and plaintiff appeals.

<p>Appeal from District Court, Brown County; J. O. Woodward, Judge.</p> <p>Action by R. I. Bowen against James C. Davis, Agent. Judgment for plaintiff, and defendant appeals..</p>

Porter, Judge. In tlie matter of the Estate of R. E. French, deceased. Contest by Mrs. Dolly Hodges and- husband against Charles French and others. Judgment for defendant, and plaintiffs appeal.

<p>Error from District Court, Edwards County; Joseph Jones, Judge.</p> <p>Action by the State Bank of Barksdale against Ben F. Meckel. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Action by the Rio Grande Canal Company and others against Thos. H. Ball and another. Judgment for plaintiffs. Defendants appeal.</p>

<p>Appeal from Coleman County Court; L. G. Mathews, Judge.</p> <p>Action by W. I. Mitchell against the Hubb-Diggs Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Master and servant <&wkey;21— Contract held terminable by employer on notice; “however.”</p> <p>Under an employment contract, effective for one year if each party performed his duty and the employee’s services were satisfactory, but providing that “if, however, either party decides to terminate this contract, he or they reserve the right to do so by giving * * * 30 days’ notice,” the employer could terminate it on such notice without being entitled to do so under the other provisions; there being no necessary inconsistency between them and the later clause, which was intended as a reservation from the operation thereof, in view of the word “however,” which means “at all events; in any case, nevertheless; notwithstanding,” and “indicates an alternative intention, a contrast with the, previous clause, and a modification of it under other circumstances” (quoting Words and Phrases, First and Second Series, “However”).</p>

<p>1. Evidence <&wkey;437 — Parol evidence rule inapplicable, where illegality alleged..</p> <p>The rule that parol evidence is not admissible to restrict, enlarge, or contradict the terms of an unambiguous written contract was inapplicable, when facts showing illegality of contract of sale under the anti-trust laws were alleged.</p> <p>2. Pleading &wkey;l27(2) — Defense of violation of anti-trust laws held not cut off by admission of interstate character of transaction.</p> <p>Defendants, sued for the balance due for goods purchased, held not cut off from their defense that the contract was so modified as to be obnoxious to the anti-trust laws by their, admission that the original contract was an interstate commerce transaction, in view of pleadings and the jury’s findings as to matters occurring after the sale and delivery of the goods.</p> <p>3. Trial <&wkey;25(9) — Effect of admission of cause of action for right to open and close stated.</p> <p>By admitting plaintiff’s cause of action, as authorized by District Court Rule 31, to obtain right to open and close, defendants admitted only such facts as could not be defeated under their special answer that the contract sued on was so modified as to be obnoxious to the antitrust laws, and were not deprived of their right to introduce testimony to prove such defense.</p>

<p>1. Bills and notes <&wkey;>522 — Evidence held to show trustees authorized to use notes as collateral.</p> <p>■ In, an action by holder on notes made to trustees handling building for a syndicate, evidence helé to warrant finding that, pending securing of a loan, and in the event one was never secured, the trustees were authorized to use the notes for the purpose of projecting the interest of the maker and other subscribers to the enterprise, and to pledge such notes as collateral.</p> <p>2. Appeal and error <S=o2l9(2) — Without request therefor one cannot complain of failure to make specific finding.</p> <p>Where appellant made no request for specific findings, he is in no position to complain of court’s failure to find specifically on a certain issue.</p> <p>3. Bills and notes <&wkey;>342 — Word “trustee” in connection with name of payee gives notice of trust.</p> <p>The use of the word “trustee” in connection with the name of the payee of a note gives notice of the existence of a trust.</p> <p>4. Bills and notes <&wkey;>342 — Word “trustee” in connection with name of payee gives no notice of defenses that maker m,ay have.</p> <p>Use of the word “trustee” in connection with the name of the payee of a note does not give a purchaser constructive, notice of any defenses of want of consideration which the maker might have urged against the original payee; this conclusion being reached without reference to Negotiable Instruments- Law, § 60 (Complete Tex. St. 1920, art. 6001a60).</p> <p>5. Bills and notes 4&wkey;330 — Indorsement by only, one.of several trustees, made payees, did not put purchaser on inquiry as to defenses.</p> <p>The fact that notes were payable to three persons as trustees, and that indorsement was only made by one of them, did not put purchaser on inquiry as to any defenses that the maker might have to the note, in view of Negotiable Instruments Law, § 41 (Complete Tex. St. 1920, art. 6001a41).</p> <p>Hall, C. J., dissenting.</p> <p>On Motion for Rehearing and for Additional Findings.</p> <p>6. Trial t&wkey;368 — Parties bound by agreed facts.</p> <p>It is too late, on motion for rehearing and for additional findings, to call in question an agreement as to facts on which the case was tried, for the purpose of making a finding as to whether it appears from the other evidence that the agreement does not state the truth.</p>