Volume 33 — Texas Civil Appeals Reports

<p>Appeal from the District Court of Williamson. Tried below before Hon. R. L, Penn.</p>

<p>Argument of Counsel—Former Appeal.</p> <p>Argument cf counsel discussing to the jury the effect of the opinion upon a former appeal and pressing a construction of such opinion which was unwarranted, held ground for reversal.</p>

<p>Appeal from the District Court of Milam. Tried below before Hon. J. C. Scott.</p> <p>Associate Justice Streetman having been of counsel, Clarence H. Miller, Esq., was qualified as Special Associate Justice.</p>

<p>1. —Fire Insurance—Void Appraisement—Omitting Articles.</p> <p>\\ ueie a lire poney pic/med tnat in ease cf "loss and disagreement as to value appraisers were to be appointed who were to make an award “as to loss and damage of such property of the insured as was alleged to have been covered by the policy,” the appraisers had no right to refuse to appraise certain articles of property auegeu by une insured in his claim to have been destroyed, and their appraisement omirting such items was void.</p> <p>2. —Same—Waiver—Second Appraisement.</p> <p>±>y standing on tne validity of the appraisement so made, the company waived its right to a proper and valid appraisement.</p> <p>3. —Same—Property Covered—Dental Books.</p> <p>Denial books are not covered by a policy on the furniture, chairs, gas apparatus, pictures, paintings, instruments, “appliances and materials incidental to a dental office.”</p> <p>4. —Same—Articles Wrongly Included—Charge.</p> <p>Where the charge, in an action on a fire policy, erroneously permitted the jury to consider the value cf the dental books, and the value of other articles was also sharply contested in the evidence, such error could not be held harmless on the ground that the other articles more than covered the insurance.</p>

<p>Appeal from the District Court of Wharton. Tried below before Hon. Wells Thompson.</p>

<p>1. —Notes—Suit Against Indorser—First Term.</p> <p>Where, after the maturity cf a note, there was not time to obtain service for the next ensuing (February) term of court, and the suit was brought to the following (April) term, this was sufficient to fix the liability of an indorser of the note, as it was, in legal effect, a bringing of the suit to the first term after the maturity of the note, as required by the statute. Rev. Stats., art. 304.</p> <p>2. —Same—Excuse for Delay.</p> <p>" If the April term is to be held the second term after the maturity of the notes, then the fact that there was not sufficient time to obtain service to the. February term, was a sufficient excuse for the failure to bring the suit to that term.</p> <p>3. —Pleading—Signing by Attorneys—Amendment.</p> <p>Failure of the attorneys for plaintiff to sign the petition is but an irregularity, and its amendment in this respect will relate back to the date of its original filing.</p> <p>4. —Notes—Accommodation Indorser.</p> <p>Where a builder of houses, in order to obtain a building contract, procured a loan to be made to the owner of the lot, and the note given for the money was executed to the builder as payee, and he at once indorsed it to plaintiff, he was not an accommodation indorser, but an indorser for value."</p>

<p>1.—Evidence—Fact, Not Conclusion.</p> <p>The testimony of a witness that the railroad agent saw plaintiff’s children before he gave' them the tickets, is the statement of a fact, and not a conclusion of the witness.</p> <p>3.—Assignment of Error—Record Not Sustaining.</p> <p>Where an assignment of error complains of the competency of a witness to give certain testimony as set out in the accompanying bill of exceptions, and the statement of facts shows that the witness, in answer to the particular question, gave no such testimony as that so set out, the assignment will be overruled.</p> <p>3. —Trial—Remarks of Counsel—Witness Absent.</p> <p>A statement by plaintiff’s counsel, while inquiring about an absent witness, that he desired to show where he was and what became of him in order to show why he was not put on the stand, was not prejudicial error where the court instructed the jury not to consider anything as to the witness’ presence or absence.</p> <p>4. —Charge—Knowledge—Harmless Error.</p> <p>Error in the charge in authorizing a recovery by plaintiff for mental anguish in being separated from -her children, regardless of defendant’s knowledge of the relationship between them, was obviated where in a subsequent paragraph the jury were instructed that plaintiff could not recover for mental anguish because of the separation unless defendant knew of such relationship.</p> <p>5. —Same—Negligence—Boarding Train.</p> <p>A charge to find for defendant unless the train was stopped a reasonably sufficient time to enable plaintiff to get on board, “and the failure to do so was through the negligence of plaintiff,” did not require the jury, in order to find for defendant, to find both that the train was stopped long enough, and that her failure to board it was due to her negligence,—the quoted words,, while useless, not being calculated to mislead the jury in view of the definitions in the other parts of the charge.</p> <p>6. —Proximate Cause—Charge.</p> <p>As there is no substantial difference between injuries the proximate result of an act and injuries of which the act is the proximate cause, a charge is not error in using the one form of expression instead of the other.</p> <p>7. —Contributory Negligence—Definition.</p> <p>Contributory negligence is such an act or omission on the part of the plaintiff, amounting to a want of ordinary and proper care and prudence,. as, concurring or co-operating with some negligent act of the defendant, is the proximate cause of the occasion of the injuries complained of.</p> <p>8. —Charge—Negligence.</p> <p>A charge to find for defendant if plaintiff caused her children to board the train while it was in motion, and then attempted to board it herself, unless an ordinarily prudent person would have done so under like circumstances, was properly refused as failing to require the jury to find that such action on plaintiff’s part constituted negligence and contributed to her injury. Following Missouri 11. & T. Ry. Co. v. Regers, 91 Texas, 58.</p>

<p>I. —Nonsuit—Intervention by Stockholder—Judicial Discretion.</p> <p>Where suit was brought by plaintiffs as a reorganization committee of an insolvent corporation to enforce and carry out an agreement made on behalf of its stockholders with a mortgagee of the corporation to prevent a sacrifice of its property at foreclosure sale, and after a stockholder had obtained leave to intervene, but before the filing of his plea of intervention, plaintiffs took a nonsuit, it was in the discretion of the court, upon allegations of fraud and of collusion between the plaintiffs and the defendants, to set aside the nonsuit and allow the plea of intervention to be filed.</p> <p>Z.—Same—Affirmative Relief..</p> <p>Where, however, the intervener’s purpose was merely to protect his own interests, and not those of all stockholders similarly situated, it was error for the court to refuse plaintiffs the right to take a nonsuit subject to the intervener’s right to prosecute his suit for affirmative relief against defendants and such of the plaintiffs as -his plea placed in the attitude of defendants.</p> <p>3. —Same—Right to Take Nonsuit—Majority of Committee.</p> <p>The right of plaintiff committee to take a nonsuit could not be denied because one of them refused to join therein where it was expressly provided in the agreement between the stockholders and the committee that the powers of the latter to institute, prosecute, compromise and dismiss suits might be exercised by a majority of its members at any time.</p> <p>4. —Same—Right to Intervene—Action in Representative Capacity.</p> <p>The suit by the committee being in their capacity as representatives of the stockholders and the intervener’s cause of action being against plaintiffs in their individual capacity and to obtain a personal judgment against them for his loss through their negligence and default, it was neither necessary nor proper for him to come into the case for the prosecution of his claim.</p>

<p>Appeal from the District Court of Galveston. Tried below before Hon. W. H. Stewart.</p>

<p>Error from the District Court of Gregg. Tried below before Hon. John Young Gooch.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. Chas. E. Ashe.</p>

<p>Dedication—Market Square—Acceptance—Trespass to Try Title.</p> <p>A company owning land laid off by it for a city dedicated certain blocks for a public market, and so designated them on its maps, sold lots with reference to the maps, and continuously recognized the right of the public to such blocks for over forty years, with the exception of an order of its board of directors, made seven years after the dedication, purporting to rescind the dedication. There was no formal acceptance by the city, but from the original dedication it had for more than forty years recognized its obligation to take < and preserve the property for the use to which it was dedicated, and claimed it and leased it as public property, but had never established a public market thereon. Held, that the title was vested in the city, and it could recover the property in trespass to try title against a third party who was a trespasser thereon.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. Chas. E. Ashe.</p>

<p>School Lands—Application to Purchase.</p> <p>A tract of State school land was appraised at $2.50 per acre, but through mistake the purchaser’s application stated the price as $2 par acre, and his obligation was given for the unpaid part of the purchase money at that price. The Land Commissioner, having discovered the mistake, notified the purcliasar, who thereupon executed his obligation for the proper amount on the basis of $2.50 per acre as the price and the Commissioner changed the figures in the application so as to show the proper price. Held, that the purchaser’s right to buy additional school lands could not be defeated by showing such mere irregularity in the title to his home section.</p>

<p>1. —Setting Fires—Railroads—Burden cf Proof.</p> <p>Where in an action against a railway company for damages caused by a fire alleged to have been set by sparks from one of its engines the real issue was whether the fire was caused by sparks from an engine, it was error for the court’s charge to put the burden of proof upon the defendant to show want of negligence in the construction and operation of its engine.</p> <p>2. —Same—Degree of Care.</p> <p>The law does not require of railway companies the equipment of their engines with absolutely “tl.e best approved appliances in general use for preventing the escape of fire,” but that degree of care only in this respect that would be exercised by a person of ordinary prudence under the same or similar circumstances.</p> <p>3. —New Trial—Diligence.</p> <p>A new trial was properly refused where the newly discovered evidence on account of which it was sought was that of a witness who had testified on the trial for the applicant, and the slightest diligence in his examination would have disclosed the alleged new matter.</p>

<p>School Land—Abandonment—Bond for Title—Sale.</p> <p>A sale of school land by bond for title which provided that the obligor should continue to occupy the land for the full term of three years and at its expiration should convey to the obligee by a sufficient school land deed, did not constitute an abandonment where the obligor never surrendered the possession under the. bond, but continued his occupancy on part of the survey and still received rent from the obligee under a lease executed prior to the bond.</p>

<p>1.—Assumed Risk' and ■ Contributory Negligence—Charge—Injury to Railroad Employe.</p> <p>A charge, in an action by a railroad employe for personal injury, that plaintiff had assumed all the risks ordinarily incident to the service, and could not recover unless his injury was caused directly by the negligence of the defendant,- without fault on his part contributing thereto, and unless his injury was caused by the negligence of defendant or its servants in the respects alleged, without fault on plaintiff’s part contributing thereto, presented a correct statement of the law as to assumed risk, and was not misleading as confusing the issues of contributory negligence and assumed risk.</p> <p>2.—Same—Fellow Servant,</p> <p>The negligence of the servant in charge of the engine, causing injury to an assistant hostler while engaged in making a coupling, renders the company liable therefor.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. T. F. Nash.</p>

<p>Custom—Fraternal Insurance—Monthly Payments—Forfeiture—Waiver.</p> <p>Proof that the local secretary of a fraternal insurance order in two instances permitted a number of two years’ standing to pay delinquent monthly assessments without complying with the required conditions for reinstatement, while he enforced the rules against all other members, was not sufficient to show a custom, binding on the order, to receive assessments tendered after the time 'of payment, in the absence of any evidence showing that the superior officers of the order knew of such violation of the rules.</p>

<p>Appeal from the District Court of Navarro. Tried below before Hon. L. B. Cobb.</p>

<p>1. —Jurisdiction—County Court—Title to Land.</p> <p>Where plaintiff conveyed land to defendants by a deed which was absolute on its face but in fact a mortgage, and defendants sold the land to an innocent purchaser without notice of the trust, plaintiff’s action to recover damages for the fraudulent conversion was not one to try title to land, nor one in which the title to land was directly involved, that issue being only an incidental one, and the amount claimed being within the jurisdiction of the county court, it had jurisdiction to try the case.</p> <p>2. —Same—Conversion.</p> <p>Where one has been deprived of his title to land by the wrongful and fraudulent act of another, he may sue for the value of the land, and is not restricted to an action for the'land itself. Willis v. Morrisj 66 Texas, 28, distinguished.</p> <p>3. —Pleading—Description of Land.</p> <p>Where in an action of damages for the wrongful conversion of land the petition stated its location and referred to a judgment of the district court of that county for a full description of it, alleging that the judgment described the land, this was a sufficient description of the property.</p>

<p>Appeal from the District Court of Comanche. Tried below before Hon. John C. Randolph, Special Judge. , .</p>

<p>Appeal from the District Court of Caldwell. Tried below before Hon. L. W. Moore.</p>

<p>Limitation Against Taxes.</p> <p>The statute preventing limitation running against a city’s claim for taxes (Acts, July 4, 1879), repealed by its omission from the Revised Statutes, taking effect September 1, 1895, but re-enacted by Act of October 9, 1895, prevented such claims from becoming barred; if regarded as affecting only the remedy, and therefore retroactive in its effect, the repealing law would be unconstitutional unless a reasonable time to sue was allowed; and though what was a reasonable time might be a question of fact, a judgment disallowing the defense of limitation would be treated as involving a finding that a. month and nine days was not.</p>

<p>1. —Master and Servant—Defective Appliances—Engine—Inspection.</p> <p>A locomotive engineer, in entering the service of a railway company, has the right to rely upon the assumption that the engine and tender furnished him are reasonably safe, and is not required to use ordinary care to see that they are safe unless, by the terms of his contract of employment, the duty of inspection is placed on him.</p> <p>2. —Same—Inspection—Delegation of Duty—Intrinsic Defects.</p> <p>As a general rule the duty of inspection and repair rests upon the master, and is nondelegable in so far as it has relation to «intrinsic defects.</p> <p>3. —Same—Engineer Making Repairs—Charge.</p> <p>In an action by an engineer for injury caused by a defect in the engine step which was an inherent one, a charge that it was his duty during the time he was operating the engine to make such light repaiis as he could with tools and material at hand, was properly refused as being on the weight of evidence, and also erroneous as a rule of law.</p> <p>6.—Same—Dio Inspector Provided.</p> <p>The engineer had the right to assume that no defect in the engine step existed when the engine was turned over to him, and, such defect not being open and discoverable by ordinary observation on his part, that it would continue in a reasonably safe eonaition until the company had an inspection mads, although he knew there was no repair shop or inspector at either terminus of his run or at any intermediate point thereon.</p> <p>5.—Personal Injury—Damages—Excessive Verdict.</p> <p>For negligent injury causing the left hand of a locomotive engineer to be crushed and cut eff near the elbow, a verdict for $15,000 is held excessive, and a remittitur of $5000 is required.</p>

<p>1. —Venue—Joinder of Actions—Multiplicity of Suits.</p> <p>In order to avoid a multiplicity of suits causes of action in favor of the same plaintiff against the same defendant in the same capacity may be joined so as to confer venue for a cause not otherwise suable in the county where the suit is brought, when one of such causes may be sued in that county.</p> <p>2. —Same—Fiduciary Capacity.</p> <p>A cause of action against a person in his individual capacity can not be joined with one against him in a fiduciary capacity.</p> <p>3. —Same—Debt and Tort.</p> <p>An action for debt and foreclosure of liens by a plaintiff against two parties, one of whom is sued in her capacity as surviving wife and against whom no judgment is sought in her individual capacity, can not be joined with an action of tort seeking to hold the wife liable in her individual capacity for the alleged fraudulent conversion of the proceeds of insurance policies on the life of her deceased husband.</p>

<p>1. —Pleading—Commissions—Real Estate Broker.</p> <p>See petition in an action to recover a share of commissions jointly earned by plaintiffs and defendant in the sale of land held to sufficiently allege an express contract between the parties as to division and payment of the commissions.</p> <p>2. —Admission—Offer Not in Compromise.</p> <p>Where an offer by defendant to pay plaintiffs a certain amount was not made in an effort to compromise prospective or pending litigation, although he had previously offered a less amount, it could be pleaded and proved as an admission of liability for such amount.</p> <p>3. —Charge—Assuming Facts.</p> <p>A charge which speaks of the verbal contract sued on as having been made by the parties, but which also submits to the jury to determine from the evidence whether or not they did make it, is not on the weight of evidence.</p>

<p>1. —Mental Suffering—Carrier of Passengers—Damages.</p> <p>A carrier of passengers is liable for mental suffering caused by its wrongful ejections of a passenger from its train, although no physical injury was done.</p> <p>2. —Evidence—-Custom—Carrier of Passengers.</p> <p>Where plaintiff, himself an old trackman, sued a railway company for wrongful ejection from a train after tender of fare to the conductor, evidence was not admissible to show that it was the custom of defendant’s conductor to permit old trackmen to ride without paying fare.</p> <p>3. —Same—Res Gestae—Ejectment of Passenger.</p> <p>Where plaintiff was ejected from a train, and after the train had been gone five or ten minutes and he had walked back some fifty yards, his statement, made then in answer to a question, that “the conductor had put him off after he had offered to pay his fare,” was not res gestae.</p>

<p>Appeal from the. District Court of Tarrant. Tried below before Hon. Irby Dunklin.</p>

<p>1. —Fire Insurance—Ownership—Negligence of Agent.</p> <p>Evidence in an action on a fire- policy held to sustain a finding that the insured property did not belong to plaintiff at the time it was insured, but to a woman with whom he was living in adultery, and that the insurance agent was not guilty of negligence in assuming that the parties were husband and wife and the woman the owner of the property, as they represented the facts to be.</p> <p>2. —Same—Pleadings—Verification—Identity of Insured.</p> <p>Where tfie defendant pleaded that the plaintiff was not the person insured, but did not deny the execution of the policy, this was not a plea of non est factum, and did not require to be verified by affidavit.</p> <p>3. —Same—Impeaching Witness.</p> <p>The woman, who had procured the insurance of the property as her own and used the man’s name as her own, being on the stand as a witness for him (plaintiff), it was competent for defendant to inquire as to her relation with the plaintiff, both to impeach her credibility and to establish facts material to the defense.</p> <p>4. —Same—Evidence—Statements of Agent.</p> <p>It was competent to prove the statements of the woman as to the ownership of the property, etc., made in procuring the insurance. Even' if the property was not hers, she was shown to have been plaintiff’s agent in procuring the insurance.</p> <p>5. —Same—Conspiracy—Declarations.</p> <p>Held also, that the evidence, which is set forth, and which tended to show a conspiracy between the woman and plaintiff to procure the insurance and burn the property, warranted proof of the statements of the woman as being those of a coconspirator.</p> <p>6. —Same—Impeachment—Contradiction.</p> <p>. ' The woman having testified that plaintiff was the exclusive owner of the property, it was competent to impeach her by showing that shortly after the fire she told a third person that if the company would not prosecute her for arson, she would give up the policy, and that plaintiff had nothing to do with it, as everything belonged to her.</p>

<p>Appeal from the County Court of Robertson. Tried below before Hon. Tom M. Taylor.</p>

<p>1. —Appeal to County Court—Final Judgment—Cross Action.</p> <p>Where plaintiff sued by distress warrant in the justice court and defendant reconvened for damages, and the justice sustained a demurrer to plaintiff’s evidence and thereupon rendered a judgment for defendant for all costs of suit, but did not dispose of such cross-action, there was not such a final judgment as would support an appeal to the county court.</p> <p>2. —Same—Jurisdiction—Fundamental Error.</p> <p>Ihe county court’s want of jurisdiction will be taken notice of by the appellate court, although no objection on that ground was made below.</p>

<p>Appeal from the District Court of Colorado. Tried below before Hon. M. Kennon.</p>

<p>Appeal from the District Court of Cherokee. Tried below before Hon. Tom C. Davis.</p>

<p>Deed by Heirs—Prior Conveyance of Half Interest—Land Certificate.</p> <p>B., being entitled to a headright league and labor certificate, agreed to convey to G. a half, interest therein for obtaining and locating it, but died before making such' transfer. Two of his three heirs afterwards conveyed to G. an equal one-half interest in the certificate, and later all three of the heirs conveyed the remaining half to T., the conveyance reciting that the other half •had been conveyed to G. The third heir survived the latter conveyance,- which he had executed by attorney in fact, nearly twenty years, and never made any -claim to the certificate or the land. Held that his heirs were not entitled to recover a third interest in one-half the land, as it would be presumed that he 'received his just proportion of the proceeds of the second sale, and thereby ■parted with all his interest in the certificate. As the contract made by B. was barred, 'it was not sought to be enforced in this action by the claimants under G.</p>

<p>Appeal from the District Court of Tarrant. Tried below before Hon. M. E. Smith.</p>

<p>Appeal from the District Court of Navarro. Tried below before Hon. L. B. Cobb.</p>

<p>Appeal from the District Court of Stephens. Tried below before Hon. H. R. Lindsey.</p>

<p>1. —Practice—Appeal Bond.</p> <p>An appeal bond on an appeal prosecuted from an order of the probate court to the district court is not substantially defective because in its condition clause it omits the word “court” in reciting the “district court,” such omission being clearly a clerical error, and there being no room to question the identity of the court referred to.</p> <p>2. —Temporary Administrators—Commissions.</p> <p>The statutes of this State prescribe neither the specific duties nor the specific compensation of temporary administrators. The allowance of commissions to the temporary administrator is vested in the sound discretion of the court controlling the temporary administration, and its award, if reasonable and just, will not be revised on appeal.</p> <p>3. —Same—Attorney’s 'Fees.</p> <p>The district court properly refused to allow attorney’s fees to the temporary administrator for services in prosecuting his appeal to that court.</p>

<p>Appeal from the District Court of Hood. Tried below before Hon. W. J. Oxford.</p>

<p>Appeal from the District Court of Cooke. Tried below before Hon. D. E. Barrett.</p>

<p>Appeal from the District Court of Erath. Tried below before Hon. W. J. Oxford.</p>

<p>Appeal from the District Court of Erath. Tried below before Hon. W. J. Oxford.</p>

<p>1. —Practice—Continuance—Bill of Exceptions—Surprise.</p> <p>A bill of exceptions to the refusal of continuance which does not include the application therefor nor otherwise disclose its merits is entitled to no consideration in the appellate court. But note the opinion for the substance of the amended petition held, in view of the substance of the original petition, not to operate a surprise and entitle a continuance.</p> <p>2. —Negligence—Charge.</p> <p>In defining negligence the charge used the phrase “ordinary prudent man”— substituting the word “ordinary,” for the customary and technically correct word “ordinarily.” Held, that the objection is hypercritical, especially when tested by the context of the charge.</p> <p>3. —Personal Injuries—Declarations as Res Gestae.</p> <p>Declarations of the injured party, immediately after receiving the injuries, so intimately connected with the transaction resulting in the injury as to be a part of it, and under circumstances to exclude the idea of fahrication, are properly admitted as res gestae.</p> <p>4. —Practice—Special Charge.</p> <p>When the general charge comprehensively and correctly embodies a proposition involved in the case, a special charge on that subject is properly refused.</p> <p>5. —Duty of Railway Employes—Frightening Teams.</p> <p>Liability for frightening a team by the railway whistle would be incurred upon the willful blowing of the whistle, or by sounding it when such employes have reasonable grounds for believing that the noise would cause fright to teams near the track, when from either cause injury resulted from fright of teams— following Hargis v. Railway, 75 Texas, 19. Note affirmative nature of proof on this phase of the case.</p> <p>G.—Damages—Charge.</p> <p>It is no ground for reversal that the court referred to the amount of damages claimed—not giving prominence to the amount. The petition claimed $3000 damages and the jury gave $525.</p>

<p>Appeal from the District Court of Tarrant. Tried below before Hon. M. E. Smith.</p>

<p>Appeal from the District Court of Erath County. Tried below be-' fore Hon. W. J. Oxford.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. Chas. E. Ashe.</p>

<p>Fraudulent Conveyance—Insolvent Debtor.</p> <p>An insolvent merchant transferred his entire stock, worth about $1000, to plaintiff, to whom he owed $400, the price being $2000, and plaintiff, after crediting his debt, executed his notes for the remaining $1600. Plaintiff was insolvent, was a farmer, and purchased without taking an inventory, examining the stock or asking the price of any article, and allowed the seller to remain in possession thereafter. Held, that the svidenee clearly showed a fraudulent sale, and at least legal or constructive fraud on the part of the buyer, who had exercised no diligence whatever to learn of any fraudulent purpose on the part of the seller to defeat the claim of his creditors.</p>

<p>Error from the District Court of Collin. Tried below before Hon. J. E. Dillard.</p>

<p>1. —Evidence—Hearsay—Count.</p> <p>Testimony as to the number of sheep in a flock by one who was present when others counted them and put down the numbers called out by them in a book was original evidence and not hearsay.</p> <p>2. —Auditor’s Report-^-Exceptions—Pleading.</p> <p>An exception to an auditor’s report was sufficient though embodied in a pleading, nor would the exception be considered abandoned by an amendment of the pleading which did not repeat it.</p> <p>3. —Evidence—Value—Contract.</p> <p>A contract of ,sale was not admissible as evidence of the value of the prop- ' erty sold, as against one not a party to the contract.</p>

<p>Appeal from the District Court of Concho. Tried below before Hon. John W. Goodwin.</p>

<p>Appeal from the County Court of Tarrant. Tried below before Hon. R. T. Milam.</p>

<p>1. —Pleading—Fraud in Execution of Contract.</p> <p>Where plaintiff’s action was brought to set aside a written instrument on the ground that its execution was procured by fraud, and the petition contained only general ailcgaticns of fraud, and did not allege any misstatement of fact, or concealment cf the truth or any deceitful act of any kind by the defendants, a general demurrer to the pleading was properly sustained.</p> <p>2. —Same—Duress.</p> <p>Where plaintiff sought to avoid, on the ground of duress, the execution of three instruments, either one of which constituted a bar to his claim for recovery, but his petition failed to allege facts 'sufficient to avoid all of them, his pleading was insufficient.</p> <p>3. —Same—Facts Mot Showing Duress.</p> <p>Allegations to the effect that a year prior to the execution of an instrument which plaintiff sought to avoid on the ground of duress, and at a time when plaintiff was preparing to sue defendant fór a settlement, defendant assaulted him, threatened to kill him if he troubled him any more about a settlement, and so put plaintiff in mortal fear of his life, are not sufficient to raise the issue of duress where it dees net appear that at the time of the execution of the instrument the defendant was present, or that he requested its execution, or that any intimation was given plaintiff that defendant would resent a refusal to execute it, or that plaintiff was weak in mind, or was not possessed of the firmness of ordinary men.</p> <p>4. —Same—Want of Consideration Not Shown.</p> <p>Where plaintiff’s petition alleged that certain instruments were executed without consideration, but shewed also that in consideration of their execution plaintiff received fCOC in cash, together with certain stock in a corporation and employment as superintendent of its business, a lack of consideration was not made to appear.</p>

<p>1. —Personal Injury—Physical Examination of Person.</p> <p>In an action for personal injury to plaintiff’s wife, resulting in a miscarriage and injury to the nervous system, it was not error for the court to refuse to order an. examination of the wife’s person by physicians appointed for the purpose, where the undisputed evidence showed that she received no external injuries, and there was no testimony indicating that an examination of her person would throw any light upon the character and extent of her injuries, or raising the suspicion that her alleged sufferings were pretended or unreal.</p> <p>2. —Same—Evidence Showing Permanent Injury.</p> <p>Evidence held sufficient to raise the issue of permanent injury to the wife, resulting from a collision which threw her to the floor of a car.</p>

<p>1. —Damages—Evidence.</p> <p>In a suit for personal injury to plaintiff it was error to admit evidence that he had a family, consisting of a wife and three children—following Railway v. Hannig, 91 Texas, 347. While the proof that he had a wife was immaterial error, that fact being otherwise shown than by direct proof offered for that purpose, it was otherwise as to the children.</p> <p>2. —Contributory Negligence—Charge.</p> <p>A rule may be thus stated: If the servant either knows, or in the exercise of ordinary care for his own safety in the'prosecution of his employment, must necessarily know, both of the defects and of the danger incident to a further use of an appliance furnished him, then in no event can he be heard to say that he relied upon the assurance of the master that there was no defect in, or danger in the use of the appliance. Or if the defects and danger are open and obvious, so that the servant is presumed to have knowledge, in either event he assumes the risk by continuing in the service. On the other hand, if the servant has nó knowledge, either actual or constructive, of both the defect and the danger, then the assurance of the master may relieve him from, the assumption of the risk and danger incident to the service to which the assurance relates, and amount to an invitation by the master to continue and perform the service free of the hazards and dangers attending its execution. See .the opinion for a charge held erroneous as conflicting with this rule.</p>

<p>1. —School Land—Actual Settlement—Evidence—Intention.</p> <p>Where plaintiff sued in trespass to try title for certain State school land for which he and defendant’s vendor had each made application to purchase as an actual settler, and which had been awarded by the Land Commissioner to defendant’s vendor, it was competent for plaintiff to prove that defendant’s vendor was never an actual settler ón the land with intent to make it his home, and that he had offered to sell it to another party, declaring that he could not afford to live on it, and had stated some three or four years previously that he could not afford to live in that county because he could make more money elsewhere.</p> <p>2. —Same—Abandonment—Charge.</p> <p>Where in such action, and upon an issue of abandonment of the land by defendant’s vendor, the evidence was conflicting, a charge that “mere temporary absence for purposes of business or pleasure, from lands settled upon, would not constitute an abandonment of such land,” was objectionable as on the weight of evidence, or as calculated, under the circumstances of the case, to mislead the jury.</p>

<p>. 1.—Pleading—Disclaimer.</p> <p>When certain of plural defendants set up by metes and bounds the particular parts of the land involved in the litigation and pray judgment therefor, the ' pleading amounts to a disclaimer as to the remaining parts.</p> <p>.2.—Final Judgment—Res Adjudicata.</p> <p>•Original judgment in the court below was in favor of all the defendants against all the plaintiffs. One of the several plaintiffs alone appealed to the Court of Civil Appeals, and that court reversed the judgment as to him, the ■ mandate reciting that the judgment of the trial court as to the nonappealing plaintiffs was left undisturbed. Held, that the judgment was a final one, and, the court having jurisdiction of the parties and the subject-matter, and the • same not having been set aside as to the nonappealing parties, was res adjudicata as to them.</p> <p>3.—Deed Construed—Fact Case—Charge.</p> <p>See the opinion in extenso for a conveyance, and for facts connected there- ■ ‘ with, held to show the conveyance of the entire locative interest in the land, and not the mere interest of the husband, and for a correct charge of the court on the issue.</p> <p>.4.—Same—Superior Title—Purchase in Good Faith—Evidence.</p> <p>See the opinion in extenso for state of facts held to establish in the defendants the superior title from the common source, and under which they were entitled to show that they were purchasers in good faith. And note the opinion ■ on the motion for rehearing to the effect that though this court erred in determining the common source that error was immaterial as affecting the merits of this appeal.</p>

<p>Appeal from the District Court of Jack. Tried below before Hon. J. W. Patterson.</p>

<p>Appeal from the District Court of San Saba. Tried below before Hon. John-W. Goodwin.</p>

<p>Appeal from the County Court of Caldwell. Tried below before Hon. Geo. W. Kyser.</p>

<p>Appeal from the County Court of Llano. Tried below before Hon. F. H. Johnson.</p>

<p>1. —Diligence—Statement- of Facts.</p> <p>See the opinion for diligence in support of a tardy statement of facts held sufficient to excuse loches of appellant. Motion to strike out statement of facts overruled.</p> <p>2. —Negligence—Evidence.</p> <p>. The evidence failing to even suggest negligence on the part of the city of San .Antonio that had any proximate connection with the injury, the trial court did not err in directing a verdict for that defendant.</p> <p>3. —Same—Jury Law.</p> <p>Complaint of an objectionable juror will not be heard when it appears that peremptory challenge was available to the party.</p> <p>4. —Same—Assignments of Error.</p> <p>Assignments of error too vague and indefinite to point out errors complained of are entitled to no consideration on appeal.</p> <p>5. —Charge of Court—Contributory Negligence.</p> <p>Objection that the court erred in submitting the question of contributory negligence as not warranted by the evidence is not -well taken where the pleading and the proof made contributory negligence the vital issue in the case.</p> <p>6. —Same—Practice—Burden of Proof.</p> <p>Objecting to the charge as failing to instruct on the burden of proof on the issue of contributory negligence, the plaintiff should have requested a special charge supplying the omission.</p>

<p>Appeal from the District Court of Hardin. Tried below before Hon. L. B. Hightower.</p>

<p>Appeal from the District Court of Smith. Tried below before Hon. R. W. Simpson.</p> <p>Appeal from the District Court of Smith.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. W. P. Hamblen.</p>

<p>Appeal from the County Court of Smith. Tried below before Hon. S. A. Lindsey.</p>

<p>Administration—Claims Against Estate—Approval—Finality.</p> <p>The approval by the probate judge of the annual account and exhibits made by an administrator does not prevent a re-examination, on appeal, of the administrator’s account as to items cf expenses of administration; and items of this character not supported by proper vouchers or not so itemized as to show that they are proper charges against the estate are here stricken out by the appellate court.</p>

<p>Error from the District Court of Harris. Tried below before Hon. W. H. Wilson.</p>

<p>Error from the District Court of Aransas. Tried below before Hon. E. R. Lane.</p>

<p>Appeal from the Comity Court of Young. Tried below before Hon. J". W. Akin.</p>

<p>1. —Telegrams—Cipher Message—Notice.</p> <p>_ Where a message relating to the purchase „of cotton, written in cipher, was delivered to an agent of the telegraph company without notice of its nature and importance, and the agent did not understand the cipher used, the company was liable, because of delay in forwarding, for only the fee received for transmission.</p> <p>2. —Same—Cipher Code—Notice Not Shown.</p> <p>Proof that the senders and other cotton dealers had for years been in the custom of sending messages in cipher, and that a copy of the cipher code used was in the office of nearly every cotton dealer, was not sufficient to charge the telegraph company with notice.</p>

<p>Appeal from the District Court of Midland. Tried below before Hon. W. K. Homan, Special Judge.</p>

<p>Appeal from the District Court of Johnson. Tried below before Hon. Wm. Poindexter.</p>

<p>Appeal from the 'District Court of Dallas. Tried below before Hon. Thos. F. Hash.</p>

<p>1. —Accident Insurance—Intentional Injury Excepted—Policeman Killed on Duty.</p> <p>A policeman was insured by an accident policy which provided that in ease of injuries, fatal or otherwise, intentionally inflicted upon himself by the assured or by any other person, the company should be liable only for the amount of the premiums paid, and was killed while in the discharge of his duty in making an arrest. As a policeman he was insured at the higher rate of risk than was charged for certain other classes. Held, that this fact did not take his case from the operation of the exemption clause on the theory ■that it was the intention to insure him against such injuries as were incident to a policeman’s life.</p> <p>2. —Same—Assent of Insured—Case Distinguished.</p> <p>This ease distinguished from Dailey v. Association, 26 Law. Eep. Ann., 171, where the assured never actually received the policy, but the same was only delivered after his death, and he therefore neither knew of nor assented to the exemption clause, wmch formed no part of the contract "as originally and actually made.</p>

<p>Appeal from the District Court of Mitchell. Tried below before Hon. W. K. Homan, Special Judge.</p>

<p>Principal and Agent—Agent’s Authority in Collection of Debts.</p> <p>The cashier of a bank is the collecting officer of such bank, and as such he has the power to enter into contracts looking to the collection of debts due the bank, and can, if the necessity arises, bind his principal to pay reasonable collection fees for the collection of its claims. The foreclosure of a mortgage to the bank on land to secure the claim of the bank, or the sale of the land under the mortgage, are steps in collection of the debt for which the cashier can legally contract commission fees to another for aid and assistance, and bind the bank therefor.</p>

<p>L—-Damages—Profits of Business as Measure of.</p> <p>While, ordinarily, profits in a business are not recoverable as damages, yet there are circumstances, as in this case, when they are hot only not remote, but constitute the only adequate measure. When the only entrance to a place of business is wrongfully closed up, and the patrons of the business are prevented from entering the premises, the natural and inevitable result must be a loss of ■ profits in the business; and when, as in this case, the evidence affords a basis for estimating the amount of loss, damages should be awarded accordingly. Following Houston & T. 0. Railway v. Luckey, 12 Texas Civ. App., 229.</p> <p>8.—Same.</p> <p>As against the contention that the plaintiff knew the road was to be constructed in front of his place ol. business, and could have declined re-lease, or terminated his lease at any time, the verdict was predicated upon the finding that the obstructions were unnecessary and negligent, and in no degree essential to the operation of the road. The plaintiff had the right to assume that the road would be constructed in a lawful and proper manner, and after his premises had been obstructed, he had the right to proceed on the assumption that they would not continue.</p>

<p>Appeal from the County Court of Coleman. Tried below before Hon. B. F. Rose.</p>

<p>Appeal from the County Court of Coleman. Tried below before Hon. B. -F. Rose.</p>

<p>1. —Joinder of Actions—Conversion of Mortgaged Property.</p> <p>It is now well settled that a suit for the foreclosure of a mortgage may be joined with an action for conversion of mortgaged property—following Cobb v. Barber, 92 Texas, 309.</p> <p>2. —Jurisdiction—nonresident.</p> <p>Such a suit was properly brought against a party charged with the conversion in the county where his codefendants, liable with him, resided. Cobb v. Barber, supra. If a nonresident of the State his appearance and pleadings subjected him to the jurisdiction of the court. York v. The State, 73 Texas, 651.</p> <p>3. —Practice—Record of Instrument—Diligence.</p> <p>See the opinion in extenso for state of proof under which it is held that the court committed no error in refusing to hear evidence, and. submitting to the jury, as an issue, whether the plaintiffs used proper diligence in having their mortgage recorded in the State of Arkansas.</p>

<p>Venue—Written Contract—Suit at Place of Performance.</p> <p>The fifth exception to article 1194, Revised Statutes, does not provide that the contract in writing shall, by express words, require performance of the contract in a particular county; but if the contract be in writing, and must necessarily be executed in a county different from that of the domicile of the party contracting, then for breach of the contract, he may be sued in either of those counties. Note facts bringing this case within' the rule.</p>

<p>Written Contract—Parol Evidence to Vary.</p> <p>Parol evidence of a consideration different from or additional to that stated in a written agreement between the parties, is not admissible in a case where the consideration for the acts or agreements of one party are the undertakings of the other, and both are stated in writing.</p>

<p>Limitation—When It Begins to Run.</p> <p>The principle established by the decisions in this State is that the cause of action does not accrue until the happening of the contingency upon which the extent of liability is made to depend, and that if, at the instance of the defendant, the happening of the condition is postponed and liability thereafter repudiated and denied by him, limitation will then commence to run from the time of such denial and repudiation.</p>

Tried below before Hon. John M. Furman. At a former term of the court the judgment in this case was affirmed. 75 S. W. Rep., 846. This opinion was rendered upon motion for rehearing.

<p>1. —Practice—Charge of Court.</p> <p>A party to a suit having procured the court to suppress evidence in regard to an attempted issue in the case is not entitled thereafter to have the issue submitted to the jury from his standpoint.</p> <p>2. —Personal Injury—Excessive Verdict.</p> <p>Evidence considered and held sufficient to authorize a verdict against a railroad company for damages for injury to an engineer in the sum of $20,000.</p> <p>3. —Master and Servant—Assumed Risk.</p> <p>Not only is the employe not required to anticipate the master’s negligence, but he- has the right to rely upon the master exercising reasonable care in securing bis safety.</p>

Certificate of dissent from the Court of Civil Appeals for the Third District, in an appeal from Milam County. Held: in disposing of the above styled and numbered cause, that the only question left in the case was whether the plaintiffs were entitled to recover the cost of the telegraphic message described and mentioned in plaintiffs’ petition; and that it was apparent from the opinion of the Supreme Court, in answnr to the questions certified,…

<p>1. —Actions Ex Contractu and Ex Delicto—‘Tort” Defined.</p> <p>The word “tort” denotes an injury inflicted otherwise than by a mere breach of contract; or to be more nicely accurate, a tort is one’s disturbance of another in a right which the law has created, either in the absence of contract, or in consequence of the relation which a contract had established between the parties. Bishop on Non-Contract Daw, sec. 4. In this definition the term “right” is em-. ployed strictly in a legal sense. That is “in the sense it implies something with which the law invests one person, and in respect to which, for his benefit, another, or, perhaps all others, are required by- the law to do or perform acts, or to forbear or abstain from acts.”</p> <p>2. —Same—N egligence.</p> <p>The tort asserted in this case is the alleged negligence of the defendant company. ' “Negligence, as constituting a cause of civil action, is such an omission by a responsible person to use that degree of care, diligence and skill which was his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended damage to the latter.” An essential element of negligence is a legal duty.</p> <p>3. —Same—Master and Servant—Medical Attention.</p> <p>No duty arising from the relation of master and servant is imposed by law upon the former to furnish medical treatment to the latter in case of sickness. This cause of action, if any, arose upon the contract of the company and the plaintiff, and if maintainable it must be as an action ex contractu and not ex delicto.</p>

<p>Appeal from the District Court of Montgomery. Tried below before Hon. L. B. Hightower.</p>

<p>Appeal from the District Court of Grayson. Tried below before Hon. J. M. Pearson.</p>

<p>Error from the District Court of Dallas. Tried below before Hon. Wm. Poindexter.</p>

<p>Appeal from the Comity Court of Lampasas. Tried below before Hon. D. C. Thomas.</p>

<p>1. —Charge—Practice.</p> <p>A charge correct so far as it goes, and deficient in not covering the law in full applicable to the case, when not sought to be corrected by request for a more specific charge, is not ground for reversal.</p> <p>2. —Carrier of Passengers—Stopping Train at Station.</p> <p>It is the duty of a railway company transporting passengers to stop their passenger1 trains at the station a time reasonably sufficient to enable such passengers to alight at the station of their destination in safety, and a charge so stating is not subject to objection as imposing an onerous burden of proof.</p> <p>3. —Same—Negligence and Contributory Negligence.</p> <p>The charge conditioned the right of plaintiff to recover on proof that he was injured without negligence on his part, and further fully submitted the defense of contributory negligence pleaded by defendant. Held correct and sufficient.</p> <p>4. —Mental Suffering—Evidence—Practice.</p> <p>In an action for personal injuries mental suffering need not be shown by direct proof where the injury is serious and permanent.</p>

<p>Appeal from the District Court of McLennan. Tried below before Hon. Marshall Surratt.</p>

<p>School Land—Change of Price.</p> <p>Following Stewart v. Wagley, 68 S. W. Rep., 297, the change in valuation • of the land by the Commissioner of the Land Office to one dollar an acre a few days after the application to purchase the same entitled the Commissioner to accept this as the standard of value in awarding it to the applicant as against a subsequent proposed purchaser.</p>

<p>1. —Deed—Mortgage—Charge of Court.</p> <p>Whether or not a deed absolute on its face was executed as an absolute conveyance, or with a trust attached to it, as that it was intended as a mortgage, is a fact which should be submitted to the jury together with the instrument and the attending facts and circumstances in evidence, with such instructions upon the legal effect of the instrument as will meet the various phases of the case.</p> <p>2. —Same.</p> <p>In this case the issue made by the pleadings and the evidence was whether the instrument was an absolute deed or a- mortgage. The charge of the court went beyond this issue and charged on it as a conditional conveyance. Held, error.</p>

<p>Practice—Charge of Court.</p> <p>On the trial of a cause in which the pleadings of the plaintiffs presented several issues, the court charged the jury as follows: “Both of the plaintiffs m their testimony before the jury stated and declared that they made no other contention in this suit but the question as to whether the water contract is limited to fifteen years or not, and therefore you are charged not to consider any of the other questions raised in the pleadings in regard to land, for plaintiffs have abandoned all questions in regard to the land and its title and homestead rights.” Held, that the plaintiff's having failed to except to the charge, or to challenge it by cross-assignment, they must be held to have acquiesced in the court’s statement of their abandonment of all issues but one. .</p> <p>2.—Paroi Evidence Varying Written Contract.</p> <p>In the absence of allegation and proof that a party to a written contract was not given an opportunity to read it, or was lacking in capacity to fully understand its terms and effect, the contract can not be varied by paroi evidence adding a provision limiting the time of its operation to a given period.</p>

<p>1. —Damages—Contributory Negligence.</p> <p>In an action against a railroad company for damages contributory negligence is an issue which must be alleged and proved by the defendant.</p> <p>2. —Venue—Transitory Action—Extra-Territorial Jurisdiction.</p> <p>A foreign railway corporation whose line of road extends through New Mexico into this State may be sued in a court of this State by a resident of New Mexico for personal injuries inflicted by the negligence of such corporation’s servants in New Mexico.</p> <p>3. —Same—Evidence.</p> <p>The trial court properly excluded as irrelevant and immaterial testimony to the effect that the courts of New Mexico were available to the plaintiff, he being a citizen and resident of that territory.</p> <p>4. —Evidence—Credibility cf Witness.</p> <p>While, as going to the credibility of a witness he may be questioned to show his pursuit of a degrading or vicious occupation, the rule can not be extended to include occupations not 'necessarily of such character. The conducting by a white man of a negro club, the purposes of such club not being shown, is not inherently wrong or vicious.</p> <p>5. —Verdict—Amount—Personal Injury.</p> <p>Note opinion for nature of injuries upon which the jury predicated a verdict for $5000, held not excessive.</p>

<p>1. —Statute of Limitations—Amendment.</p> <p>When the cause of action is an injury resulting from the alleged negligence of the defendant, the time, place and circumstances of which are stated in the original petition, which is filed before limitation has barred the action, limitation can not be pleaded to an amendment which states more fully than the original petition the results of the injury, and which is filed at a time when the statute would bar a recovery on a suit then brought.</p> <p>2. —Pleading—Evidence.</p> <p>The amended petition alleged “that as a result of his injuries he has lost his mind and reason.” Held sufficient to,admit proof of the plaintiff’s condition of-mind, even though it was only temporary derangement.</p> <p>3. —Public Crossings—Signals—Charge of Court—Cases Distinguished.</p> <p>The trial court charged the jury that “it was the duty of those in charge of the engine pulling said train to blow the whistle of said engine and ring the hell of the same, at least eighty rods from the place where defendant’s railroad and said public road cross each other where plaintiff was injured,” and in the succeeding paragraph instructed the jury that if they believed there had been a' failure to blow the whistle and ring the bell eighty rods from the crossing “as provided by law,” and such failure was the proximate cause of the injury, a verdict should be found for plaintiff. Held not obnoxious to the objection that it required the jury to find that the whistle was sounded and the bell rung at a point exactly eighty rods distant from the crossing. Note cases distinguished.</p> <p>4. —Negligence—Question for July.</p> <p>A question of negligence depending on evidence, is one which can not be taken from the jury except in cases where there is no material conilict, and where there is no room fer different minds to draw different inferences from it.</p>

<p>1. —Evidence—Certified Copy of Lost Deed.</p> <p>An affidavit conforming to the provisions of article 2312 of the Revised Statutes is a sufficient predicate for the introduction of a certified copy from the proper record. A specific statement of the acts of diligence in searching for a. lost deed is only necessary when it is sought to prove the contents thereof by paroi under the rules of the common law.</p> <p>2. —Same—Affidavit of Forgery—Ancient Document.</p> <p>An affidavit of forgery puts the party asserting the impugned deed upon proof of its execution. The inability of the defendants to produce the original having been shown by the affidavit of one of them, a certified copy from the proper record was admissible as evidence; and if such copy should show that the deed had been recorded for more than thirty years it would be evidence of such an ancient document with the necessary corroborative proof derived from the certificate of acknowledgment.</p> <p>3. —Same.</p> <p>But the copy received in evidence in this case was not from any record authorized by law. It was the, copy of a certified copy from the records of a parent county recorded in the records of the new county without. authority of law, and hence had no legal standing as evidence.</p> <p>4. —Same.</p> <p>The defendant claimed under a lost deed from the patentees to one S. and deraigned title to themselves from M. and G., the grantees of the widow of S., again a married woman, in a deed in which she was not joined by her husband. Held, "that while this last mentioned deed was void because executed without the joinder of the husband, and inoperative to pass title, the original was admissible for the purpose of corroborating the evidence of the validity of the deed from the patentees to S.</p>

<p>Appeal from the District Court of Wood. Tried below before Hon. T. B. Butler.</p>

<p>1. —Action for Death—Measure of -Damages—Charge.</p> <p>In an action of damages for "death, brought by the surviving mother and wife of the deceased, a charge instructing the jury that, in the event of a verdiet for plaintiffs, they should find for them such a sum “as is of a value at the present time sufficient to reasonably and fairly compensate plaintiffs for such pecuniary benefits, as you may believe from the evidence plaintiffs had a reasonable expectation ■ of receiving” from the deceased, was equivalent to charging that plaintiffs should receive such a sum “as would fairly compensate them for the pecuniary loss sustained.” If there was error in the charge, it was in defendant’s favor.</p> <p>2. —Remittitur—Damages for Death.</p> <p>It is not reversible error for the trial court to require a remittitur of excessive damages as a condition to his overruling a motion for new trial.</p>

<p>Appeal from. the District Court of Grayson. Tried below before Hon. Bice Maxey.</p>

<p>Error from the District Court of Galveston. Tried below before Hon. Bobt. M. Franklin.</p>

<p>Error from the County Court of Harris. Tried below before Hon. Blake Dupree, County Judge.</p>

<p>Appeal from the District Court of La Salle. Tried below before Hon. B. A. Stevens.</p>

<p>1. —Jurisdiction—Nonresident Parties.</p> <p>Tile courts of Texas have jurisdiction over an action by a nonresident against a corporation of another State doing business in Texas, though the action be not one in rem.</p> <p>2. —Telegram—Damages for Mental Suffering—Interstate Law.</p> <p>A nonresident plaintiff may recover against a telegraph company, in the courts of Texas, damages for mental suffering caused by delay in delivering a telegram, though addressed to plaintiff at a place, beyond the limits of the State, where such damages were not recoverable by the local law.</p> <p>3. —Pleading—V ariance—Telegram.</p> <p>Plaintiff having declared for damages by delay in delivering a telegram addressed to her at “Chickasha,” 1. T., there was no variance in introducing d message addressed to “Chickash,” and transmitted to the Chickasha office in time for due delivery.</p> <p>4. —Jury.</p> <p>No error to defendant’s prejudice was shown by the fact that the jury took with them, in retiring to deliberate, a copy of the message for delay in delivery of which it was sued.</p> <p>5. —Telegraph—Delay.</p> <p>Evidence held to support a finding of inexcusable delay in delivering a telegram.</p> <p>6. —Telegraph Company—Rules for Closing Office—Charge.</p> <p>The question of negligence in delivery of a telegram is not controlled by the company’s rules as to hours of closing its office, where there was evidence of a special undertaking to deliver outside such office hours.</p>

<p>Appeal from the County Court of Lee. Tried below before Hon. John H. Tate.</p> <p>Bell sued Wooley and recovered judgment from which the defendant appealed.</p>

<p>Appeal from the District Court of Travis. Tried below before Hon. E. L. Penn.</p> <p>Steger sued Hume and appeals from a judgment for defendant.</p>

<p>Appeal from the District Court of McLennan County. Tried below before Hon. Marshall Surratt.</p> <p>The administrator of Bell’s estate appealed from a judgment of the District Court, rendered on appeal from the county court in probate.</p>

<p>Appeal from the County Court of Fort Bend. Tried below before Hon. William Masterson, County Judge.</p>

<p>1. —Parties—Bondholders—Unincorporated Association.</p> <p>Plaintiff brought an action for personal injury causing death against the D. Electrical Co. and its receiver, and also joined as defendants the “Bondholders of the D. Electrical Co.,” alleging that the latter was a foreign association, or acting association, composed of numerous nonresident persons whose names were unknown. An answer was pleaded for the bondholders in the name by which they were sued, and judgment was rendered against them by such designation, no individual being named. The evidence showed that a number of bondholders of the electrical company had appointed a committee to look after the expenditure of certain moneys in reconstructing the plant, and that this was being done under the direction of an agent at the time of the injury, but that the bondholders were not operating the electrical plant nor in control thereof. Held, that such association of the bondholders did not constitute a legal entity capable of being sued without making the members thereof parties to the ac: tian.</p> <p>2. —Same—Filing Answer—Plea in Abatement.</p> <p>It was immaterial that the “bondholders” had filed an answer in the case, and had not, by plea in abatement, raised the issue as to whether they were an association, since no issue could be made with a thing that had no legal existence. . •</p> <p>3. —Negligence—Electricity—Joint Defendants—Liability of Owner of Line.</p> <p>Where two electrical companies by agreement use the same poles, owned by one of them, and a lineman of the lessee company is injured through the negligence of the owning company in not having its wires properly insulated, such latter company is liable for the injury, and is not relieved of responsibility because of the failure of the other company to turn off all the electricity at the time, which it had the privilege and opportunity of doing.</p> <p>4. —Same—Corporations—Action for Death—Negligence of Agent.</p> <p>The failure to have the wires properly insulated was the negligence of the corporation itself, and not that of its subordinate agents such as would exempt it from liability for injury causing death.</p> <p>5. —Same—Charge—Burden of Proof—Harmless Error.</p> <p>Where the evidence showed that the negligence of the appellant company was the proximate cause of the injury, and that it was liable therefor, error in the charge on the burden of proof such as might have led the jury to believe that-the negligence of its codefendant company would authorize a judgment against both defendants, was harmless.</p> <p>G.—Action for Death—Damages to Parents.</p> <p>A verdict for damages in favor of parents for injury causing the death of their son is not warranted where the evidence showed that the son had not since his marriage, contributed anything to their support, there being no necessity therefor, and that there was no reasonable expectation of their receiving further pecuniary benefit from him had he lived.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. T. F. Hash.</p>

<p>Appeal from the District Court of Tarrant. Tried below before Hon. M. E. Smith.</p>

<p>Appeal from the County Court of Wilbarger. Tried below before Hon. J. A. Habers.</p>

<p>1. —Contributory Negligence—Charge—Personal Injury.</p> <p>A charge that if the jury should find “that a person of ordinary prudence, employed as plaintiff was at the time of the injury, would not have placed himself in the position occupied by plaintiff at the time of the collision, they should: find for the defendant,” sufficiently includes the theory of a requested. charge to the effect that if the jury should find that plaintiff (a call boy) negligently remained on the engine after delivering an order to the engineer, and that being on the engine was the proximate cause of his injuries, they should find against him. " r</p> <p>2. —Same—Charge Sufficient.</p> <p>The charge so given presented the theory of contributory negligence so pointedly and comprehensively as to render proper the refusal of any further charge on that subject.</p> <p>3. —Assignment of Error—Charge Without Evidence.</p> <p>An assignment of error to the court’s refusal to give certain charges is futile where no evidence is set out under it, or otherwise appearing, such as would have warranted the giving of the charges. <</p>

<p>1. —Killing Stock—Railroads—Charge Without Evidence.</p> <p>In an action for the value of a horse alleged to have been struck and killed by a railroad engine, a charge making the defendant company liable if the horse was frightened and thus-caused to go on the track, was error where there was no evidence of the animal having been frightened.</p> <p>2. —Same—Burden of Proof—Charge.</p> <p>Where, in such action, the evidence was not such as to shift the burden of proof on to the defendant in any respect, a charge that the jury should “render a verdict in favor of the party in whose favor the evidence preponderates,” was. erroneous, since, in the event the jury had believed the evidence evenly balanced, the defendant was entitled to their verdict.</p>

<p>Appeal from the District Court of Clay. Tried below before Hon. A. H. Carrigan.</p>

<p>.1.—Telephone Companies—Poles—Damages.</p> <p>Telegraph and telephone companies are authorized by statute, in this State, to set poles upon or across the public streets in such manner as not to incommode the public in the use of such streets, and this authority carries with it liability for damages arising from the placing of such poles in such manner as to cause injury to a traveler not guilty of contributory negligence.</p> <p>2.—Same—Proximate Cause—Negligence—Burden of Proof.</p> <p>It is immaterial' whether the failure of a telephone company to set its poles on a public street in such a manner as not to incommode the public be deemed negligence per se or negligence in its ordinary form; it becomes a question for the jury to determine whether there was such a failure. If there was, the company would be liable for such injuries to travelers along the street as are proximately caused by such failure. Defending under the statute it would devolve upon the company to bring itself within its terms. S.-rSame.</p> <p>The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause produces that event, and without which that event would not have occurred. Note the opinion for an elaboration of the principle, and the holding that the pole as placed in this instance was the proximate cause of the collision resulting in injury.</p> <p>,4.—Same—Contributory Negligence.</p> <p>Contributory negligence is an, issue for the jury. That the plaintiff knew of the situation of the pole with reference to two fence posts when she undertook to drive her buggy between them would not constitute contributory negligence per se.</p>

<p>il.—Damages—Negligence—Proximate Cause—Evidence.</p> <p>Evidence considered and held sufficient to establish negligence on the part of the railway company as proximate cause for the injuries and property losses declared on in the suit, for damages.</p> <p>8.—Common Carriers—Liability for Loss of Baggage.</p> <p>In the absence'of legislation limiting the responsibility of carriers it can not be assumed that the general law prescribes any definite fixed limit to the value of baggage beyond which the carrier is not liable. What is a reasonable quantity of baggage for which a carrier should be held liable under the circumstances is a question of fact for the jury. It is not required that when the passenger delivers his .baggage for transportation he shall inform the carrier of the specific articles constituting it.</p> <p>3. —Practice on Appeal—Assignment of Error.</p> <p>An assignment of error complaining of two distinct rulings of the court in no wise related or connected and presenting two separate and distinct questions, is not entitled to consideration • on appeal.</p> <p>4. —Contract Limiting Liability—Interstate Commerce—Charge.</p> <p>The provision of our statute which prohibits common carriers from limiting their liability, as it exists at common law," by stipulations in' the bill of lading, .is valid as applied to contracts for interstate transportation of property. Special charge stating the converse of this principle was correctly refused.</p> <p>5. —Measure of Damages—Evidence—Lost Baggage.</p> <p>The measure of damages for lost baggage is the reasonable value of the same at the point of destination, and not at an intermediate point though that point be where the initial carrier’s line connects with the terminal carrier’s. Proof, therefore, of the value at El Paso of baggage destined to San Francisco v;as properly excluded.</p> <p>6. —Carrier of Passengers—Accident—Negligence Presumed.</p> <p>Where an accident happens upon a railway from which a passenger sustains an injury by the breaking down of the carriage, or by .the running off of the train, or the spreading or breaking of the rails, the very nature of the occurrence will be prima facie evidence of the negligence of the company or its servants. Note a charge objectionable as directing conclusive effect to a particular fact, held under the principle stated to be harmless error.</p> <p>7. —Same—Presumption.</p> <p>Otherwise and briefly stated, the plaintiff is not bound to prove more than enough to raise a fa4r presumption‘of negligence on the part of the defendant and of resulting injury to himself. Having done this, he is entitled to recover, unless the defendant produces evidence sufficient to rebut this presumption.</p>

<p>1.—Contract—Construction of—Evidence.</p> <p>The contract under which this suit was brought was ambiguous in its terms as to whether H. & Co., sellers of the machinery to be placed by them, were to superintend and direct the construction of the foundation to De provided by M. The proof showed that H. & Co. accepted M.’s contention that they were to so direct the work, and eventually did so. Held, that H. & Co. can not now be permitted to maintain that it was M.’s duty to construct the foundation without their direction, and that his failure to do so was the cause of delay in the erection of the plant.</p> <p>it.—Practice on Appeal—Evidence—Assignment.</p> <p>Though the brief of the appellant does not in all things conform to the rules, yet as the issue of the sufficiency of the evidence to sustain the verdict against his claim in reconvention for damages is presented by assignment in the brief, and it also containing statements from the record sustaining that proposition, the appellate court would not be justified in ignoring the assignment. See the opinion for the substance of evidence held to entitle the appellant to recovery on his plea in reconvention.</p>

Error from the District Court of McLennan. Tried below before Hon. Marshall Surratt. Rotan appeals from a judgment over against him as warrantor, by-Hays, in a suit by the city of Waco against Curtis and others to foreclose a tax lien.

<p>Amendment—New Cause of Action—Notice.</p> <p>An action against a warrantor of land, who did not appear, was amended without notice to him, so as to claim, in addition to the value of the part of the tract sold which was adversely claimed, depreciation in the value of the whole tract by the loss of that part. Held, that there could be no recovery for the latter element of damages without notice of the amendment.</p>

Tried below before Hon. Sam R. Scott. Watson appeals from a judgment in favor of Markham & Reese in their suit against him and others to foreclose.

<p>Homestead—Fraudulent Conveyance—Notice.</p> <p>See the opinion for the substance of proof held abundant to put the plaintiff on notice of the homestead nature of the property involved, the fraudulent character of the notes executed and on which the action is based, and hence to have demanded a contrary judgment.</p>

<p>1. —Justice of the Peace—Jurisdiction.</p> <p>Justices of the peace in this State exercise a general jurisdiction within their limitations, and their judgments are to be measured and estimated by the same rules as apply to judgments of the district and county courts.</p> <p>2. —Same—Direct Attack Upon a Judgment.</p> <p>A proceeding to set aside a judgment of a justice court is a direct and not a collateral proceeding. Whether, therefore, the judgment was void or only voidable, the court properly heard proof aliunde on the issue of service.</p> <p>3. —Same—Service—Notice to .Nonresident.</p> <p>The notice in lieu of citation on nonresident defendants provided by article 1230 of the Revised Statutes for the district and county courts does not apply to justice courts, and those courts can not procure service by means of such notice.</p> <p>4. —Same—Void and Voidable Judgment—Innocent Purchaser.</p> <p>The rule in this State is that where the record is regular on its face strangers may deal with it as of absolute verity, and this even where the recital of personal service is not true in fact. It is, it seems, a question of evidence rather than jurisdiction. So, rights acquired under such judgments, voidable only, by innocent strangers for value, will not be disturbed, the wronged party being relegated to his remedy against the plaintiff who procured the false recital to be made.</p> <p>5. —Execution Sale—Gross Inadequacy of Consideration.</p> <p>While the mere inadequacy of price will not authorize the setting aside of a sheriff’s sale otherwise regular, the rule is as well settled that he who invokes' the doctrine against a hidden vice must be a bona fide purchaser for value. Note' that in this case the gross disproportion between price paid and value was sufficient to put the parties on notice, and that the advantage taken was constructive fraud. Note also that under the circumstances of the case the court should have required the refunding of the price paid at the sheriff’s sale.</p>

<p>1. —Railroad—Speed at Public Crossing—Negligence.</p> <p>Railroad trains are not required to slacken speed in crossing a public road, and unless the operatives of the train in any. particular case are chargeable with knowledge of facts which would make it their duty in the exercise of reasonable care not to run the train over a public crossing at its usual speed it is not negligence for such operators to fail to reduce speed at such points.</p> <p>2. —Same—Damages—Pact Case.</p> <p>See the opinion for the substance of proof held insufficient to establish negligence of the defendant company as the proximate cause of the fatal accident, and therefore insufficient to support a verdict for damages.</p>

<p>Appeal from the County Court of Cherokee. Tried below before Hon. James P. Gibson.</p>

<p>1. —School Lands—Sale of Detached Lands.</p> <p>As between two applications to purchase school lands on the market in detached sections, both conforming to the requirements of law, the first filed has the prior right of purchase, and the Commissioner of the General Land Office properly discharges his duty when, having wrongfully, through mistake, rejected the prior application and accepted the subsequent he sets aside the latter and reinstates the first.</p> <p>2. —Same—Collusion Between Purchasers—Commissioner’s Certificate.</p> <p>The affidavit of the prospective purchaser of school land made under the pains and penalties of perjury is a sufficient safeguard against bad faith, and the making ef such affidavit, and a compliance with legal requirements in other respects, prima facie imposes upon the Commissioner of the General Land Office the duty to allow the application for the purchase. If such purchase was m fact collusive, only the State can take advantage of it. Logan v. Curry, 95 Texas, 664.</p>

<p>Appeal from the County Court of Harris. Tried below before Hon. Blake Dupree, County Judge.</p>

<p>Limitation—Coverture—Pleading.</p> <p>Evidence of coverture will not be considered when the coverture of the wife has not been pleaded in avoidance of the plea of limitation set up against her.</p>

<p>1.—Municipal Corporations—Fire Department—Personal Injury—Liability of City.</p> <p>A municipal corporation is not liable for the negligence of firemen causing personal injury to a third person, even though the firemen are engaged at the time in the line of their duty.</p> <p>2.—Same—City Charter—Fire Parade.</p> <p>The charter of a city provided for a fire department, and that the city council should “have control thereof,” and that “said department shall at all times be subject to such regulations as the council may ordain.” A firemen’s convention was about to be held in the city, and the city council passed an ordinance directing the fire department to take part in the parade, and making an appropriation for the expenses of its doing so. in order, so plaintiff alleged, to promote the trade and commerce of the city. During the parade plaintiff was injured through the negligence of a fireman in driving his engine rapidly into a crowd. Held, that the council had no authority to pass such ordinance, and the city was not liable for plaintiff’s injury.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. ■ T. F. Hash.</p>

<p>Appeal from the County Court of Erath. Tried below before Hon. L. N. Frank.</p>

<p>Counties—Suit Against—Injunction—Venue.</p> <p>Where execution upon a judgment in favor of a county was levied on land in another county and an injunction to restrain the sale was sued out against the plaintiff county and the sheriff of such other county who made the levy, the writ was properly made returnable and tried in such other county, where the sheriff resided, by virtue of article 2996, Revised Statutes, regulating injunction suits and providing that where there is more than one party against whom the writ is granted it may be returned and tried in the county where either party resides. To hold that the venue was determinable under the general statute regulating venue (Rev. Stats., art. 1194) and governed by subdivision 19 of said article, providing that all suits against a county shall be tried in some proper court within such county, would be to allow a general provision in one statute to control a special provision in another.</p>

Tried below before Hon. J. M„ Morgan. Action in trespass to try title by S. A. Greer against J. F. Mann for the recovery of school land. From a judgment in favor of plaintiff the defendant appeals.

<p>1. —Negligence—Definition in Charge.</p> <p>A charge defining negligence .as “the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such a person under the existing circumstances would not have done,” does not present reversible error in the absence of request for a more explicit and accurately worded definition.</p> <p>2. —Evidence—Admission—Claim for Damages.</p> <p>In an action of damages against a railroad company for injury to cattle during shipment, plaintiff’s claim for the damages as originally presented, in a sum less than sued for, and at a time when no controversy had arisen as to the amount of defendant’s liability, can be given in evidence against him as an admission, and a-charge that the jury should not consider it, if it was an offer to compromise, was uncalled for and erroneous.</p> <p>3. —Live Stock Shipment—Measure of Damages.</p> <p>In an action of damages for injuries to stock -in transit to market it was error for the court to charge that the jury, in estimating the damages, should first determine what was the reasonable value of the stock in the market at the time they should have arrived, "without reference to the injury or damage sustained by them,” and from this deduct their value in the condition in which they did arrive, as this would allow plaintiff damages for such injuries as were necessarily received by the stock in transit.</p>

<p>Error from the District Court of El Paso. Tried below before Hon, J. M. Goggin.</p>

<p>Chattel Mortgage—Reservation of Title.</p> <p>A contract of sale of chattels reserving title in the vendor until paid for is a chattel mortgage, not only as against third persons, but as between the parties; the assignee of the notes for purchase price had the right, as mortgagee, to take back the property in payment or part payment "of the debt secured; and where this is done without rights of lien holders, purchasers, or mortgagees intervening he takes good title as against a subsequent assignee in bankruptcy, though the debtor was then insolvent and was declared a bankrupt within four months.</p>

<p>1. —National Bank—Taxation of Stock.</p> <p>Both the Federal-and the State statutes (Rev. Stats., U. S., sec. 5219; Rev. Stats., arts. 5079, 5079a, 5080) authorize taxation of shares of stock in national banks only against the owners, not the bank itself, and the latter is under no obligation to render and pay taxes except on its real estate.</p> <p>2. —Same—Voluntary Rendition.</p> <p>A bank which voluntarily rendered its shares of stock for taxation, and tendered the taxes assessed on its valuation, could not be compelled to pay on an increased valuation fixed by the board of equalization nor be made liable for the penalty fixed for nonpayment.</p>

<p>1. —Certiorari—Showing Merits.</p> <p>Petition for certiorari to review a judgment in justice court need not set out all the evidence there introduced, but, if it fails to do so, must exclude the idea that there was evidence introduced which might have justified the judgment.</p> <p>2. —Same—Carrier—Damages—Notice.</p> <p>Where plaintiff recovered against a carrier damages to his cattle by delay in transporting feed for them, a petition for certiorari showing that there was no evidence introduced, and that it was not a fact, that defendant was notified that the feed was to be used for such purpose “at the time the freight was received for a shipment” was insufficient, because it did not show that he had no notice before that time.</p>

Tried below before Hon. Clarence Martin. This appeal is prosecuted by the defendant below on a judgment for damages for breach of contract.

<p>1. —Limitation—Charge—Omission.</p> <p>A charge properly presenting the defense of limitation, but not directly instructing to find for defendant if the facts were found in his favor, can not be complained of by him for that defect in the absence of a requested instruction supplying the omission.</p> <p>2. —Limitation—Evidence—Possession.</p> <p>Evidence in support of limitation in a suit for land considered, and held too unsatisfactory on the subject of defendant’s actual possession to require the reversal of a judgment against him.</p> <p>3. —Innocent Purchaser—Agreement.</p> <p>An agreement, on trial of a boundary case, admitting title in the respective parties to the land called for in their deeds “except in so far as the same may be defeated by the agreed boundary line” or by limitation, would seem to preclude one of them from avoiding the effect of the agreed boundary by. the plea of innocent purchaser.</p> <p>4. —Innocent Purchaser.</p> <p>Evidence in support of a claim to defeat the effect of an agreed boundary line on the defense of innocent purchase considered, and held insufficient to require reversal, defendant showing no payment of value save from the recitals in his deed, and the proof being sufficient to sustain finding that he bought with actual or implied notice.</p> <p>5. —Boundary—Agreement.</p> <p>An agreement, in a boundary suit, admitting that the parties had title to their respective lands, as described in their deeds respectively, except in so far as the same might be defeated by the agreed boundary line, etc., did not eliminate the issue of boundary nor preclude the introduction of evidence to identify the actual boundaries called for in their respective deeds.</p> <p>6. —Former Appeal—Change in Proof.</p> <p>The state of the evidence herein distinguished from that on the former appeal and held to show the case not concluded by the opinion therein. '</p> <p>7. —Boundaries—Evidence—Calls.</p> <p>Parol evidence is not admissible to alter the calls given in the description of land in a conveyance, but is, to identify the land by such calls, explain discrepancies arising from their application to the land and show which is correct and which mistaken where they conflict; and in so doing calls for course and distance may prevail over those for natural or artificial landmarks where it is made to appear that the latter were called for by mistake, and this under the general issue, without resort to action in equity to correct the instrument.</p>

<p>Appeal from the District Court of Liberty. Tried below before Hon. L. B. Hightower.</p>

<p>Statement of Facts—Brief.</p> <p>Motion to strike out statement of facts overruled because the fault of tardy filing does not rest upon appellant. As without prejudice the motion to strike out briefs of appellant also overruled.</p>

<p>Appeal from the District Court of Washington. Tried below before Hon. Ed E. Sinks.</p>

<p>1.—Notes—Suretyship—Parol Evidence.</p> <p>Where a person not the payee of a note signs his name upon the back at the time of its inception, without any words to express the nature of his undertaking, he is liable as an original promisor or surety, and paroi evidence is admissible to show the real obligation intended to be assumed..</p> <p>2.—Same—Extension Releasing Surety.</p> <p>An extension of the time of payment of a note for a valuable consideration without the consent of a surety will release the surety from liability thereon.</p>

<p>Appeal from the District Court of Hopkins. Trial below before Hon. H. C. Connor.</p>

<p>Appeal from the District Court of Archer. Tried below before Hon. A. H. Carrigan.</p>

<p>Appeal from the County Court of Lavaca. Tried below before Hon. C. J. Gray, County Judge.</p>

Tried below before Hon. J. H. Warren, County Judge. This is a third appeal from a judgment in favor of the appellee for damages to a carload of meat.

<p>1. —Vendor’s Lien—Limitation—Superior Title.</p> <p>The assignee of a note secured by vendor’s lien expressly retained in the deed and who holds also a transfer of the assignor's interest in the land, can recover the land itself, where limitation is successfully pleaded to a suit for recovery and foreclosure on the note.</p> <p>2. —Payment—Evidence.</p> <p>The evidence held to support a finding that a note sued on had not been paid.</p>

<p>County Treasurer—School Fund—Bond.</p> <p>This ease is affirmed in accordance with the rulings of the Supreme Court upon certified questions herein (Poole v. Burnet County, 97 Texas, 77.)</p>

<p>Master and Servant—Safe Appliances—Assumed Risk.</p> <p>Evidence considered in an action by a servant for personal injuries and held, as against assumed risk on his part, net to establish such negligence of the master v/ith reference to furnishing safe appliances and a safe place to work in as would warrant a recovery.</p>

<p>Appeal from the District Court of Medina. Tried below before Hon. I. L. Martin.</p>

<p>1. —Street Railway—Statute Construed—Penders on Cars.</p> <p>Statutes and ordinances must have a reasonable construction upon them, and not one repugnant to common sense. Though the ordinances of San Antonio, literally construed, might be read to require that electric street car companies shall keep fenders and motormen on trailer cars which have no motors, yet under our rule of construction that can not be the interpretation placed.</p> <p>2. —Same—Personal Injury.</p> <p>Evidence considered and held to support a verdict for the defendant company in an action for personal injuries.</p>

<p>Receivership—Rents of Realty—Foreclosure of Lien.</p> <p>The appellant sued the appellee, without being joined by her husband, to cancel a deed of trust on her separate estate, executed by herself and husband to secure appellee on a loan to the husband, the ground set up being the extension of the loan by appellee upon the payment of a valuable consideration by appellant’s husband, without her knowledge or consent. Appellee answered to the merits, and besides filed a cross-action praying for judgment on the note and foreclosure of the lien created by the deed of trust. He also filed an application for the appointment of a receiver to collect the rents and revenues of the property upon which the deed of trust was given, as provided for in the deed of trust, and by an interlocutory order this receivership was created and a receiver appointed. From this interlocutory order this appeal is prosecuted upon propositions mainly that appellee was not entitled to the receivership, failing to show himself without adequate remedies at law, as by writ of sequestration. Held that the receivership was properly .granted to secure the rentals involved.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. J. L. Camp.</p>

<p>Appeal from the District Court of Val Verde. Tried below before Hon. J. M. Goggin.</p>

<p>Appeal from the District Court of Colorado. Tried below before the Hon. M. Kennon. .</p>

<p>Appeal from the District Court of Orange. Tried below before Hon. W. P. Nicks.</p>

<p>Sale of Land—Recovery for Deficiency—Mutual Mistake.</p> <p>When it transpires in a sale of land that by the mutual mistake of the purchaser and the seller the deficiency m the quantity of the land as contracted and as surveyed is gross, equity will afford relief to the purchaser to the extent of the value of the deficiency.</p>

<p>Appeal from the District Court of Navarro. Tried' below before Hon. L. B. Cobb.</p>

<p>Carrier of Passengers—Degreé of Care—Starting Train—Passengers Alighting.</p> <p>In an action by a passenger for injury received in alighting from a train a charge that if the defendant company stopped its train at plaintiff's destination a reasonably sufficient length of time for passengers to alight therefrom, and that in then starting the train it exercised that degree of care which a very cautious person would exercise under similar circumstances, plaintiff' could not recover, was erroneous as imposing too high a degree of care. If the train stopped a sufficient time for plaintiff' to alight, then defendant, in starting the , train, was bound to use only ordinary care to avoid injuring him.</p>

<p>1. —Evidence—Copy of Judgment—Archive of Land Office.</p> <p>Where A. obtained judgment" against T. for the recovery of school land not patented or paid out to the State, a copy of such judgment, when filed in the General Land Office, becomes an archive thereof, and could be proved by a certified copy of it made by the Commissioner.</p> <p>2. —School Land—Occupant—Bona Fide Settler.</p> <p>Actual settlement on school land does not, per se, entitle the party to purchase additional school lands, since the statute limits the right to so purchase to those who are “bona fide purchasers,” and does not extend it to a mere occupant. Rev. Stats., art. 1418f.</p> <p>3. —Same—Right to Purchase Additional.Land.</p> <p>The Act of 1895 did not limit the right to purchase additional lands to such persons as were actual settlers upon and purchasers of land classified as agricultural, and hence plaintiff was not precluded from purchasing such additional lands because his home section was classified as “watered .grazing'' land. Terry v. pale, 27 Texas Civ. App., 1, not followed. 1</p> <p>ON REHEAEING.</p> <p>4. —Same-—Cancellation of Lease—Trespass to Try Title.</p> <p>Plaintiff sued in trespass to try title to recover school land by virtue of rejected applications to purchase it. It had been awarded to defendant, was in the absolute district, and was included in an unexpired lease by the State to a third party at the time of plaintiff’s applications. Plaintiff claimed that, as to the given tract in suit, the lease had been waived in his favor by the lessor and canceled by the Commissioner. Held, that the burden was on plaintiff to show specifically that the lease had been canceled at a time, in a manner, and for a cause authorized by law.</p>

<p>Appeal from the District Court of Nolan. Tried below before Hon. James L. Shepherd.</p>

<p>1. —Land—Contract to Convey—Consideration—Trust—Case Stated.</p> <p>Appellant bought of B., now deceased, a tract of land for $09,000, deeding in payment a place in Houston at $18,000, and executing vendor’s lien notes for balance. Subsequently she conveyed parts of the land for about $10,000, represented by vendor’s lien notes, which she delivered to B. in lieu of that much of his original lien. Her notes to B. falling due, and she being unable to meet them, applied to B. for time in which to sell the land and pay them. B. consented to cancel the debt if appellant, within a few days, would pay him $37,000. On her failure to do so B. sued on the notes, foreclosed his lien, and at the foreclosure sale bought in the land for $500, which amount he credited on the judgment. Appellant brought this suit against B., alleging that, prior to his foreclosure suit, he agreed to buy. in the land at foreclosure sale in full satisfaction of his judgment, and deed the same to her if, within a reasonable time, she should find a purchaser through whose purchase she would pay him $37,000 in cash. She alleged that by force of this agreement B. took the title in trust for her; that within a reasonable time she found and tendered cash purchasers for a greater sum than named in the agreement, but that B. refused to perform his agreement, repudiated his trust, and sold a large part of the land for large sums to purchasers without notice of the trnst. The consideration alleged for B.’s .undertaking was appellant’s agreement to accept service of the suit in G. County, and interpose no resistance to the foreclosure. Verdict and judgment was for the defendant, the latter adjudging the vendor’s lien notes satisfied by the purchase of the land at sheriff’s sale. Under these facts held:</p> <p>1. That the transaction with B., on which this suit was based, was without consideration.</p> <p>2. That in any event B.’s promise was an agreement to convey land, and not being in writing was invalid.</p> <p>3. That B.’s purchase at the foreclosure sale did not constitute a trust for the benefit of appellant.</p> <p>2. —Same—Cross-Suit—Breach of Warranty—Judgment.</p> <p>After receiving the warranty deed conveying to him the Houston property, B. discovered that it was burdened with a mortgage for $3250, which, to protect his title, he was compelled to pay off with interest. He sued the appellant on her warranty, which suit, by agreement, was consolidated with appellant’s suit, and the two were tried together. Judgment on this suit on the warranty was for appellant. Held, error. This transaction was not an exchange of lands, each tract standing surety’for the other, but the Houston property was conveyed by warranty as a first payment on appellant’s purchase, and the incumbrance described constituted a breach of warranty. See. however, the opinion on rehearing.</p>

<p>Appeal from the District Court of Galveston. Tried below before Hon. E. G. Street.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. J. L. Camp.</p>

<p>1. —Carriers of Passengers—Degree of Care—Unsafe Yards.</p> <p>The degree of care exacted of carriers in the transportation of passengers, applies not only at the station and proximate approaches, but to its premises generally, where it is made to appear' that the defendant, by its acts, made it necessary or proper for its passenger to take the course he does for the purpose of. getting on its train. The rule applies as well while the passenger is engaged in proper acts in the effort to board the train as when he is on the train.</p> <p>2. —Same—Demurrer—Contributory Negligence.</p> <p>The petition sufficiently alleging negligence and the answer setting up contrifoutbry negligence the trial court declined to pass upon the facts relied upon in the countervailing plea in the nature of a demurrer, and submitted the issue to the jury. Held correct.</p> <p>S.—Same—Negligence—Evidence.</p> <p>It being a question of fact as to the negligence of defendant, and also as to plaintiff’s contributory negligence, there was no error in allowing -proof of the conditions existing at the place of the accident.</p> <p>4. —Same—Practice—Directing Verdict.</p> <p>Evidence considered and held to present the issues of negligence and contributory negligence, wherefore the trial court did not err in refusing to direct verdict for defendant on the proof.</p> <p>5. —Same—Charge.</p> <p>Under the proof held that the trial court did not err in submitting to the jury whether the plaintiff, in attempting to board the train, proceeded under the directions and at the invitation of defendant’s conductor.</p> <p>6. —Same—Charge—Date of. Accident.</p> <p>Where the petition alleged the accident as “on or about” December 14th, it was not objectionable that the charge submitted, the accident as occurring “on or about” that date.</p> <p>7.—Same—Diminished Earning Capacity—Excessive Verdict.</p> <p>Evidence considered and held to ¿uthorize a finding of plaintiff’s diminished earning capacity, and to support the award of $4000 as damages.</p> <p>3. —Same—Depot Premises.</p> <p>Under the circumstances of the case held immaterial whether or not the place of the accident was strictly within defendant’s depot premises.</p>

<p>-Appeal from the District Court of Kinney. Tried below before Hon. J. M. Goggin.</p>

<p>Appeal from the County Court of Bexar. Tried below before Hon. R. B. Green, County Judge.</p>

<p>Appeal from the District Court of Robertson. Tried below before Hon. J. C. Scott.</p>

<p>Error from the District Court of Grimes. Tried below before Hon. J. M. Smither.</p>

<p>1. —Landlord’s Lien—Allowance for Support of Widow—Priority.</p> <p>The landlord's statutory lien on the crop for supplies and advances during the year the crop was raised is, in the administration oí an insolvent tenant's estate,' superior to the claim of the widow and minor children total lowance tor a year’s support. ^</p> <p>2. —Same—Statute Construed.</p> <p>The landlord’s statutory lien on the crop for rents.or supplies or advances is held to apply only to the crop raised during the year the rent accrues or the supplies, etc., are furnished.</p> <p>3. —Same.</p> <p>Article 2037 of the Revised Statutes is merely directory as prohibiting the making of allowance to the widow at the same term of court at which the administrator was appointed, and that the allowance was then made will not necessarily reverse a judgment.</p>

<p>1. —County Treasurer—Statements in Report—Evidence—Sureties.</p> <p>A statement in the report of a county treasurer of the balance on hand at the time of making the report is not required by the law to be made by him, and is not admissible in evidence against his sureties.</p> <p>2. —Auditor's Report—Finding—Additional Statements Not Affecting.</p> <p>Where, in an action against a county treasurer and his sureties, an auditor’s report stated that the treasurer’s report to the commissioners court “shows that he received from the county tax collector, on account of bonds and interest from all told $1682.56,” this was a distinct finding by the auditor that the treasurer had received that amount, and, the auditor’s report not having been excepted to, made a prima facie case against the sureties for that amount, and such finding was not affected by additional statements in the auditor’s report of the amount shown to be on hand in the treasurer’s report to the commissioners court and of admissions made in an exhibit attached to the treasurer’s pleading in the case.</p> <p>3. —Samé—Conclusiveness.</p> <p>The auditor’s report, not having been excepted to, was conclusive, and evidence to contradict it was not admissible.</p> <p>4. —Trial—Evidence After Argument Begun.</p> <p>It is within t}le discretion of the trial judge to admit testimony after the evidence has been closed and the argument begun, and unless the record shows there has been an abuse of such discretion his action will not constitute reversible error.</p> <p>5. —Auditor’s Report—Receipts of County Treasurer—Evidence.</p> <p>Evidence that a county treasurer received certain school fund moneys from the State between December 30, 1896, and March 23, 1897, does not contradict the statement in an auditor’s report that such moneys were received between December 5, 1896, and March 23, 1897, since both may be true.</p> <p>6*—Evidence—School Fund Warrants Drawn by State Comptroller—Copies.</p> <p>In an action against a county treasurer and his sureties the amount of the school fund received by such treasurer could be shown by deposition of the State Comptroller having attached thereto copies of warrants drawn by his predecessor for the school fund of the years in question in favor of the county treasurer upon the county tax collector, showing receipt of their amounts by the county treasurer indorsed thereon, such warrants with their indorsements being kept by the Comptroller in the performance of his official duties and being archives of his office. There was no error in also admitting in evidence a statement of the account of the county treasurer kept in the office of the State Treasurer and certified to by him as correct.</p>

<p>1, —Citation—Stating Names of Parties.</p> <p>In an action against two defendants a citation naming but one of them as the defendant in the case is fatally defective and will not support a judgment by default.</p> <p>2. —Same—Stating Cause of Action.</p> <p>Where a citation, issued to" a defendant residing out of the county, and accompanied by a certified copy of plaintiff’s petition, as required in such cases by article 1215, Revised Statutes, does not contain a statement of the nature of plaintiff’s demand, but in lieu thereof says, “For cause of action reference is here made to the certified copy of plaintiff’s original petition hereto attached,” the citation is defective and will not support a judgment by default.</p>

<p>Appeal from the District Court of Clay. Tried below before Hon. A. H. Carrigan.</p>

<p>1. '—Homestead—Simulated Transfer to Obtain Loan—Fraud of Agent—Spe-r_. cial Issues.</p> <p>Defendants, acting upon the suggestion of the local agent of a loan company, and in order to obtain a loan upon homestead property, conveyed it, without consideration, to a third party, who obtained the loan and was to reconvey the property. In an action brought by a purchaser of the property under the trust deed given to secure the loan defendants asserted their homestead rights, and the case having been submitted on special issues, the jury found (1) that defendants made a fictitious and simulated deed of the property to such third party for the purpose of deceiving the loan company and procuring in that way a loan that would not otherwise have been made; (2) that the local agent helped and aided defendants in the transaction, and had notice of the facts; (3) that such deed to the third party was for the purpose only of divesting the homestead character of the property so as to get it in shape to secure the loan. Held, that such findings were contradictory, ambiguous and uncertain, and did not authorize a judgment for the plaintiff.</p> <p>2. —Same—Notice to Principal—Knowledge of Agent—Fraud.</p> <p>The loan company would be exempt from notice because of the knowledge of its agent only in case there was a purpose to deceive and defraud to which the agent was a party, and this would involve the idea that the agent and defendants knew; at the time, that the security was a nullity, and that the loan company was to be kept in ignorance of the true facts and thereby deprived of security.</p>

<p>1. —Evidence—Admissions—Abandoned Pleadings.</p> <p>Abandoned pleadings containing admissions against interest are admissible in evidence, and it is immaterial, upon the question of admissibility, that they are not signed or sworn to by the party sought to be bound.</p> <p>2. —Same—Practice on Appeal.</p> <p>Where evidence has been improperly excluded the rule on appeal is, that in order to hold that such error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted therefrom.</p>

<p>Appeal from the County Court of Grayson. Tried below before Hon. G. P. Webb.</p>

<p>1. —Negligence—Charge—Issues Waived.</p> <p>In an action for damages for personal injuries, other issues than negligence were set up in the petition, such as misrepresentation and warranty of the safety of the machine for use, but the court submitted only the issue ■of negligence, and the plaintiff did not request other submission. Under such conditions the defendant’s liability through negligence is the only question to be considered. The evidence failing to establish negligence on the part of defendant the errors assigned are immaterial.</p> <p>2. —Same—Care—Dangerous Articles of Trade.</p> <p>One who deals with a thing that is inherently very dangerous, involving both death and bodily harm to some person as the natural and almost inevitable consequence of lack of care, owes to the public at large the duty of extreme caution. A gasoline “pear burner” is not a thing of that nature, and only the standard of ordinary care applies.</p> <p>3. —Same—Presumptions—Directions for Use and Operation—Evidence.</p> <p>The machine involved in this accident had on it directions for its use and operation, and it is held that when a machine is sold accompanied by 'such directions, the maker can not be held to a greater degree of care in its construction than to construct it of reasonable strength and fitness when used in accordance with directions. In this case it was contended, on proof of the manner of use, that the explosion itself was evidence of defend- ' ant’s negligence. But the rule it that while the circumstances attending the occurrence may be sufficient to establish negligence without direct proof of the fact, yet such presumption can not arise from the fact alone. Note evidence for plaintiff held not to establish negligence.</p> <p>4. —Same—Proof of Negligence.</p> <p>The fact that since this accident the defendants have constructed their machines of stronger materials is not evidence of former negligence.</p> <p>5. —Same—Evidence.</p> <p>Evidence that a certain character of metal was stronger than that of which the machine was constructed, and that parts of the machine left uninjured by the explosion were weaker than the parts blown out, insufficient to show negligence.</p>

<p>Appeal from the District Court of Bexar.' Tried below before Hon. S. J. Brooks.</p>

<p>Appeal from- the District Court o£ Bexar. Tried below before Hon. John H. Clarke.</p>

<p>Error from the District Court of Harris. Tried below before Hon. Chas. E. Ashe.</p>