Volume 34 — Texas Civil Appeals Reports

<p>Appeal from the District Court of Llano. Tried below before Hon. Clarence Martin.</p>

Tried below before Hon. Sam E. Scott. Floyd and others appeal from a recovery against them in trespass to try title by Watkins. .

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

<p>Jurisdiction—County Court—Sale of Land—Cancellation.</p> <p>The county court has jurisdiction of a suit to recover back money paid on a sale of land induced by fraudulent misrepresentations, and to cancel a note for unpaid purchase money, though such note is secured by a vendor’s lien.</p>

<p>Appeal from the District Court of McLennan County. Tried below before Hon. Sam. E. Scott.</p>

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

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

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

<p>Contract—Waiver—Evidence.</p> <p>Evidence in a suit on a contract for boring and equipping an oil well held sufficient to support the judgment of the court, assuming a waiver on part of defendant of certain stipulations in the contract.</p>

<p>1. —Agency—Independent Contractor.</p> <p>Evidence considered and held to warrant a finding to the effect that a party, in making a contract with plaintiff for certain railroad work, was acting as the agent of a firm, and not as an independent contractor.</p> <p>2. —Same—Pleading—Issue Made by Answer.</p> <p>Where plaintiff sued a firm and one L. jointly on a contract of employment, and the firm tendered into court what it claimed to be the proper amount due under the contract,' and specially pleaded a denial that L. was a member of the firm, alleging that D. had no relation to the firm except that he took from it a subcontract to do the work, such plea, to which the law supplies a general denial, put in issue L.’s true relation to the coiuriict, and warranted evidence to show that L., in making the contract, acted as the agent of the firm.</p>

<p>1. —Trespass to Try Title—Vacant Public Land—Possession—Survey.</p> <p>Where defendant, conceiving that there was a strip of vacant public land between certain surveys in plaintiff’s pasture of 28,000 acres, and of which pasture plaintiff had had possession for fifteen years, causd the same to be surveyed and the field notes returned to the General Land Office, and before the Commissioner had taken action thereon went into possession of the land so surveyed, it was error for the court, in trespass to try title brought by plaintiffs for such surveyed land, to exclude testimony offered by defendant to show the vacancy as claimed, on the ground that the testimony was immaterial because of plaintiff’s long prior possession and because defendant was held to be a mere trespasser, since the prima facie inference arising from possession is entirely rebutted where the land is shown to be vacant public domain.</p> <p>2. —Same—Naked Trespasser.</p> <p>It seems also that defendant was not a mere trespasser in taking possession of the land, since, if it was vacant public domain, his possession, premature though it may have been, interfered with the rights of no one.</p>

<p>1. —Innocent Purchaser—Power of Attorney.</p> <p>As against a prior unrecorded trust deed conveying the land to minor children, of which he had no notice, the attorney in fact, after his performance of all the conditions named in the power of attorney, became vested! with the interest conveyed to him by such power of attorney, and could hold! the same as against the unrecorded deed. Evidence held to establish such a. case.</p> <p>2. —Same—Conveyance to One Having Notice.</p> <p>A purchaser of land for value without notice of existing claims- takes it free from such claims, and may convey a perfect title to a subsequent purchaser for value who may be chargeable with notice.</p> <p>3. —Same—Payment of Taxes.</p> <p>Power of attorney held not to impose upon the grantee therein the payment of taxes due on the land as a condition to the vesting of his interest..</p>

<p>1. —Sale—Warranty—Buyer’s Remedy.</p> <p>On a sale with express warranty of quality the buyer may accept the article without being compelled to inspect it, and afterwards, if it does not comply with the contract, recover damages for breach of the warranty or offset them against the contract price.</p> <p>2. —Warranty.</p> <p>A letter proposing to sell a metal awning for a building and promising “a strictly first class job,” held sufiicient, in connection with other facts, to support a finding of express warranty, and to justify a discount, in suit for the contract price, by reason of breach of such warranty, the awning proving defective and the purchaser having been absent when it was received and put up.</p>

<p>1. —Railway—Injury at Crossing—Contributory Negligence.</p> <p>Evidence of traveler on highway in a wagon struck by a train at a railway crossing considered and held sufficient to support a recovery involving a finding of due care on his part.</p> <p>2. —Same.</p> <p>Evidence of circumstances, the extent to which the view was obstructed, and the comparative speed of the train and of plaintiff’s wagon considered, and held not to so conclusively disprove his statement that he looked for the approaching train without discovering it as to require a reversal of a verdict in his favor.</p> <p>3. —Contradicting Witness—Evidence on Former Trial.</p> <p>Evidence of plaintiff on former trial as to care used in approaching a railroad crossing held not to contradict his present version to the extent of requiring it to be discredited.</p> <p>4. —Crossing—Contributory Negligence—Question of Fact.</p> <p>The care required of a traveler on a highway in approaching a railway crossing must necessarily be left to the judgment of a jury, unless the evidence discloses clearly a lack of ordinary care.</p>

<p>1. —Default—New Trial—Restricted Order.</p> <p>On application oí defendant for new trial after judgment by default, the court may, by restrictions in its order, reopen the case for the hearing only of a defense on the merits, without letting in a plea of defendant that it was sued in the wrong county.</p> <p>2. —Hearsay—Trial Before Court.</p> <p>The admission of hearsay evidence will be ground for reversal, though the trial is without a jury, unless it is reasonably certain that the result would have been the same had the testimony complained of been excluded.</p>

<p>Appeal from the District Court of Llano. Tried below before Hon. Clarence Martin.</p>

<p>1. —Limitation of Ten'Years—Adverse Possession of Land Supposed to Be Public Domain—Cases Reviewed and Differentiated.</p> <p>One who has settled upon land under the homestead donation statute, erroneously believing it to be vacant public domain, can interpose ten years of such occupancy as a bar to the suit of a previous location under a valid certificate, the land remaining unpatented1—following Longley v. Warren, 11 Texas Civ. App., 269. Note other cases differentiated.</p> <p>2. —Same—Enclosure.</p> <p>Under article 3343 of the- Revised Statutes ten years adverse possession is a bar without reference to enclosure. Of the 160 acres claimed by appellees in this case but 110 were enclosed. Held that occupation applies to the entire 160 acres. Note the opinion on motion for rehearing. reviewing the questions discussed.</p>

<p>,1.—Railroads—Negligence—Fencing Right of Way—Charge.</p> <p>The railway company is required to exercise the utmost care for the safety of its passengers, and in view of the fact that it has the right to fence its right of way, if this is not done the fact that derailment is caused by contact with an animal is one which may be looked to in ascertaining whether or not the carrier has exercised due care. Special charge presenting the converse proposition was properly refused.</p> <p>2.—Same—Prima Facie Case—Practice.</p> <p>When, by the derailment of the train a passenger is injured, a prima facie case of negligence is made out which entitles him to recover unless it is rebutted. Special carges contravening this principle were properly refused.</p>

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

<p>1. —False Imprisonment—Extradition Warrant—Evidence.</p> <p>An extradition warrant issued by the Governor, fair and regular on its-face, will protect the officer executing it, and in an action for damages for-false imprisonment against the officer is admissible in evidence.</p> <p>2. —Same—Evidence—Deposition.</p> <p>It was error to exclude as evidence the deposition of the defendant officer explaining his connection with the detention of the plaintiff under the-extradition warrant.</p>

<p>1. —Variance—“At” Meaning “Near.”</p> <p>“At” when used in relation to a village or settlement means anywhere in the neighborhood of such village or settlement. Allegation “at Humble” is not affected by proof of a house two miles from Humble.</p> <p>2. —Trial—Evidence After Argument Begun.</p> <p>Article 1298 of the Revised Statutes, authorizing the trial court to admit evidence at any time before the conclusion of argument, is directory, and the abuse of the discretion by admitting evidence after the argument is closed, and before the case is given to the jury, must be shown to prejudice the case in order to be ground for revision.</p>

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

<p>Appeal from the District Court of Hunt. Tried below before Hon. T. D. Montrose, Special Judge.</p>

<p>Conversion—Measure of Damages—Mistake in Honest Belief.</p> <p>Where G. sold to a tie contractor, at 6 per cents per tie, 150 railroad ties, to be cut from timber on land which G. honestly believed to be his own and included by the field notes of his deed, but which in fact belonged to plaintiff, and the contractor cut the ties and sold them to defendant at 35 cents per tie, the measure of damages in an action against defendant for the conversion of the ties was 6 cents per tie, that being their market value in their original state and when first taken through honest mistake.</p>

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

<p>1. —Railroads—Personal Injury—Public Road.</p> <p>Where plaintiff’s team, while she was driving along a road, were fright- , ened by a car negligently left in an unusual position near a crossing, it was immaterial, as to the liability of the defendant railway company, that the road had never been established as a public road by the commissioners court nor became such by dedication or prescription, where it had become public by long continued use with the knowledge and consent of the company.</p> <p>2. —Same—Contributory Negligence.</p> <p>Nor did the fact that plaintiff might have reached her destination by a different route and over a legally established public road affect the defendant’s liability.</p> <p>3. —Pleading and Proof—Personal Injuries—Value of Services.</p> <p>Where in an action for personal injuries plaintiff’s petition did not specifically allege the value per month of her services before the injury, but did show that they had been valuable, and that the injury had permanently disabled her, and claimed damages for permanent inability to perform future labor, this was sufixcient to admit evidence, over objection, of the value per month of her services before the injury, there being no exception to the pleading because of the failure to specifically allege the value of such services.</p>

<p>Appeal from the District Court of Deaf Smith. Tried below before Hon. Ira Webster.</p>

<p>Infant—Custody—Mother’s Unfitness. "</p> <p>In a contest between the paternal grandfather and the mother over the custody of a boy of four years of age, where the grandparent had pleaded that .the mother had a bad reputation for chastity, truth and honesty, it was reversible error for the trial court to sustain exceptions to such allegation and refuse to hear evidence in its support.</p>

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

<p>1. —Res Adjudicata—Issues Not Actually Determined.</p> <p>The plea of res judicata applies not only to points upon which the court was actually required to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of the allegation, and which the parties, exercising reasonable diligence, might have brought forward at the time.</p> <p>2. —Same—Usury—Enforcement of Lien.</p> <p>N. brought suit against T. to recover land and made the mortgage company a party, seeking to cancel a lien it claimed against the land, and the judgment thereon established the validity of the lien. Afterwards the mortgage company brought this suit to foreclose the same lien, and N. pleaded usury in the debt secured by the lien. Held, that the issue of usury was res judicata, as it should have been- asserted in the former suit attacking the validity of the lien.</p> <p>3. —Loan Company—Expense of Removing Incumbrance.'</p> <p>Where a mortgage provided for the repayment to a loan company of all moneys paid by it “on account of, or to extinguish or remove, any prior or outstanding title, lien, claim or incumbrance on the premises hereby conveyed,” this did not entitle it to repayment for the expenses of defending a suit brought by a third party whose claim or title was expressly determined to be subordinate to the mortgage.</p>

<p>Error from the County Court of Panola. Tried below before Hon. J. G. Woolworth.</p>

<p>1. —Trespass to Try Title—Intervention—Pleading.</p> <p>In a suit for the recovery of land, interveners claiming the property stand in the relation of plaintiffs in trespass to try title and are governed by the rules of pleading and evidence applicable to that action.</p> <p>2. —Same—Pleading Special Defenses.</p> <p>Though the rule that defendant in trespass to try title who pleads his. title specially is confined to the matters alleged, and can not show other defenses under his plea of not guilty, may apply to a defendant as against interveners, the allegation by such interveners claiming their mother's interest in community property as against a conveyance by the surviving father, that the latter had executed a bond for administration as survivor of the community relieves the defendant from making such allegation and brings that issue into the case.</p> <p>3. —Community Property—Bond of Survivor—Conveyance Referred to Power, ,</p> <p>Though the surviving husband had executed bond before making a conveyance of community property, it remained a question whether his subsequent deed was to be referred to that power or was intended as a conveyance of his own interest in the community, effecting a partition between himself and the heirs.</p> <p>4. —Community Property—Partition by Survivor.</p> <p>Where the interest of one of the three heirs has been settled by the surviving husband, who afterwards, by conveying a part of the property as his own, effects a partition, the remaining heirs take the whole and not a. two-thirds interest in the property left by such partition.</p> <p>5. —Husband and Wife—Confidential Communication.</p> <p>A statement by a husband to his wife that the heirs of his former wife were part owners of property held in his name, was not such a confidential communication as would be inadmissible in evidence on the issue of her notice of such title where she afterwards purchased from the husband.</p> <p>6. —Deed—Question of Law.</p> <p>The legal effect of a deed is a question for the court and should not be submitted to a jury.</p> <p>7. —Charge—Conflict—Consideration.</p> <p>It was error to submit the question whether there was valuable consideration for a deed, by one charge, when, by another, and upon evidence warranting it, the court had charged that such deed was upon valuable consideration.</p> <p>8. —Charges.</p> <p>See instruction as to evidence to be considered by the jury held improper.</p> <p>9. —Community Property—Legal and Equitable Title—Innocent Purchaser, Burden of Proof.</p> <p>The claim of heirs of the mother as against the purchaser of the legal title from the surviving father was an equitable one, and the burden was on them to prove that such purchaser either paid no value or bought with notice.</p>

<p>Limitation—Ten Years—Limit of Possession.</p> <p>Adverse possessipn for ten years of a portion only of a town lot, gives title to the limits of a lot, though not held under a deed defining the limits of the constructive possession.</p>

<p>Practice—Pleading.</p> <p>Obstructive pleading, interposed merely for delay or postponement, will not be countenanced. In striking out the supplemental answer in this case the trial court did not abuse its discretion.</p>

<p>1. —Practice—Expert Testimony.</p> <p>The rule as to expert testimony is that the subject of inquiry is one of science, skill or trade, or questions of like kind, about which the expert, by his previous training, habits or study, has more skill and knowledge than jurors of average intelligence may be presumed generally to possess. If the subject of inquiry is one that may be presumed to be within the knowledge and common experience of the average man in the ordinary walks of life, the opinions of experts are not admissible.</p> <p>2. —Same—Hypothetical Question.</p> <p>Questions addressed to experts should be based upon a hypothetical statement of facts, and it is the privilege of the person asking the question to assume any state of facts which the facts tend to prove. An opinion given by an expert on a given' statement of facts, which the testimony tends to prove, goes to the jury as any other fact, to be accepted or rejected as the jury may deem proper. Expert testimony held properly admitted under these rules.</p> <p>3. —Practice—Charge.</p> <p>See charge held not obnoxious to the objection that it is misleading.</p> <p>4. —Same—Argument of Counsel—Bill of Exceptions.</p> <p>Alleged abuse of the privilege of argument by counsel can not be revised in the absence of bill of exception.</p> <p>5 w—Damages—Evidence.</p> <p>On the evidence held that the verdict is supported and is not excessive.</p>

<p>1. —Practice—Argument of Counsel.</p> <p>In the absence of a showing to the contrary inappropriate and inopportune remarks of counsel in argument to the jury, trifling in nature, will not be presumed to have prejudiced the jury adversely to the other party.</p> <p>2. —Temporary Administration—Extension of.</p> <p>A temporary administration decreed by the probate court for the purpose of conducting this suit expired by limitation .with the convening of the next term of the court, and was extended by order entered upon the minutes in open court. Held that the proceeding was valid and correct.</p> <p>3. —Practice on Appeal—Questions the Court Will Consider.</p> <p>Only the grounds set forth in the bill of exceptions for the exclusion of evidence will be considered on appeal, although other grounds be embodied in the assignments of error. Note evidence the admission of which is held harmless, if error at all.</p> <p>4. —Same—Evidence.</p> <p>It. was not error, in action on a life insurance policy, to admit in evidence a card on which was written notice by the company to the insured, of a premium maturing.</p> <p>■5.—Evidence—Preliminary Proofs of Death—Waiver.</p> <p>Over objections appellee was permitted to testify that soon after the death of the insured he asked the defendant company’s superintendent what the company intended to do about the claim, and asked for blanks on which to ■ make out the proofs of death, and that the superintendent replied that the company would not pay the policy and refused to furnish the blanks. Held that the evidence was properly admitted to show a waiver of the proofs of ■death.</p> <p>■6.—Same—Bill of Exceptions.</p> <p>Error assigned on the exclusion of evidence will not be considered when the grounds of objection are not stated in the bill of exceptions.</p> <p>7. —Parties to Suit.</p> <p>The wife of a decedent is not a necessary party with the temporary administrator in an action on a life insurance policy.</p> <p>8. —Life Insurance Policy—Warranty.</p> <p>The policy provided that the representations and answers in the application, made a part of the policy, were warranties, and that untrue answers would vitiate the policy. It is immaterial under this provision that the' 'insured did not disclose that he was a married man, inasmuch as that question was not asked.</p> <p>.9.—Delayed Premiums—Waiver.</p> <p>A clause in a policy exempting the insurer from liability until actual ' payment of the premium may be waived by the insurer or its authorized . agent, and the contract of insurance will become binding. Facts held to ' constitute a waiver.</p>

<p>Appeal from the District Court of Schleicher. Tried below before Hon. T. C. Wynne, Special Judge.</p>

<p>1. —Factors—Contract Construed—Unpaid Draft.</p> <p>Facts stated under which it is held that the assignee of certain drafts attached to b.lls of lading for corn shipped was liable to the consignee for the difference between the amount paid on such drafts and the amount which the corn brought at a sale thereof, it having been damaged in transit.</p> <p>2. —Same—Authority to Draw Draft.</p> <p>An instruction to a consignee to sell certain corn shipped and draw drafts for the difference between its billed price and the amount realized at such sale held to render l.able for drafts drawn for such difference, although the sale had been already made at the date the instructions to sed were given and mailed.</p> <p>3. —Limitation of Four Years—Contract—Draft.</p> <p>Where a commission merchant sued to recover the difference between the price at which certain corn sold and the amount of drafts drawn by the shipper and attached to the bill of lading, the action was on a written obligation and so was within the four years statute of limitation.</p>

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

<p>Sale of Land—Commissions—Evidence.</p> <p>Evidence in an action for commissions for sale .of land held to support a judgment in favor of defendants.</p>

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

<p>1. —Principal and Agent—Admissions of Agent.</p> <p>Where a machinery company' sold plaintiff a thresher, with an agreement to send a man to put it in operation, and did send its State agent for that purpose, his admissions, as testified to by plaintiff and made at the time of the effort to put the thresher in operation, to the effect that the machinery was defective and not what was contracted for, were admissible in evidence against the company.</p> <p>2. —Expert Evidence—Witness Qualified—Interest.</p> <p>A witness who had worked around and with threshers for many years was competent to testify that a thresher he bought from defendant was old and worn out when he got it; and his interest in the case did not disqualify him from testifying as an expert.</p> <p>3. —Res Adjudicata—Breach of Warranty.</p> <p>A judgment of foreclosure obtained by the seller of machinery against the purchaser on lien notes given for the purchase price is a bar to the purchaser’s right to a rescission, but not of his remedy for a breach of warranty. Where the purchaser contracted to pay the freight, the amount thereof to be credited on his notes given for the purchase money, this was concluded by the judgment on the notes.</p> <p>4. —Jurisdiction—Amount in Controversy.</p> <p>Where the amount put in controversy by plaintiff’s version of the matters in dispute was within the jurisdiction of the court, it was immaterial that defendant’s allegations placed the amount at a sum outside of the jurisdiction.</p>

<p>1. —Assumed Risk—Sand Bank Falling—Open Danger.</p> <p>Plaintiff, an employe, was directed to haul a load of sand from a sand bank. The particular place was not pointed out to him, nor did the employer know the bank was dangerous at that place. Plaintiff was inexperienced and was not warned, but the liability of the bank to fall was a matter ■open to common observation. Held, that the danger of injury from the falling of the bank was an assumed risk.</p> <p>2. —Same—Knowledge of Natural Laws. •</p> <p>' It must be assumed that plaintiff was acquainted with the laws of gravitation and knew that a body of 'earth unsupported below was liable to fall ■at any time.</p>

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

<p>Bailment—Measure of Damages—Market Value.</p> <p>Where plaintiff rented a traction engine to defendant under a special contract that defendant was to return it in as good condition as when he got it, and the engine was injured while in defendant’s control, and he had it repaired before returning it, it was error for the court, in an action of damages for the injury, to charge as the measure of damages the difference in the market value of the engine before and after the injury, since plaintiff’s right of recovery was not for tortious negligence, but upon the special contract as alleged by him.</p>

<p>1. —Benefit Insurance—Suicide—Forfeiture.</p> <p>A mutual benefit order, having an insurance feature for its members, provided among its by-laws that if a member died by self-destruction, whether sane or insane, the beneficiary certificate, entitling him to participate in the insurance fund, together with all claims by reason of membership, should be null and void. The certificate specified that the member to whom it was issued “is entitled to all the rights and benefits of membership, according to the constitution and laws of the order;” and in his application for membership the applicant agreed to be “bound by the constitution, laws, rules and regulations of the order.” Held, that a member who committed suicide thereby forfeited his claim against the insurance fund.</p> <p>2. —Same—Paying at Discretion.</p> <p>A provision of the by-laws that the board of managers might, in their discretion and without prejudice, pay such sum, in case of such forfeiture, as they should deem the circumstances surrounding the death to warrant, conferred on the beneficiary named in the certificate no legal claim against the order.</p>

<p>Appeal from the County Court of Dallas. Tried below before Hon. E. S. Lauderdale.</p>

<p>Appeal from the District Court of Travis. Tried below before Hon. George Calhoun.</p>

<p>Appeal from the County Court of McLennan. Tried below before Hon. G. B. Gerald.</p>

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

<p>Appeal from the District Court of Guadalupe. Tried below before Hon. M. ICennon.</p> <p>The opinion fully states the case.</p>

<p>1. —Railroads—Trespassers on Track—Ordinary Care.</p> <p>A charge that it is the duty of those operating railroad trains to exercise ordinary care to avoid injury to persons on the track applies alike to trespassers and those lawfully on the track, and a special charge defining trespassers and licensees is not necessary.</p> <p>2. —Same—Railroad Track as Highway—Trespassers—Contributory Negligence.</p> <p>Where, by public use and acquiescence on the part of a railroad company, its track has become a thoroughfare for pedestrians, this license extends only to the use of the track as a highway, and persons who sit or sleep on such track are trespassers and guilty of the grossest negligence, and the only duty which those operating the train owe to them is to use every means in their power to prevent injury after discovering their perilous position.</p> <p>3. —Evidence—Dying Declarations.</p> <p>Declarations by a person injured on a railway track, made a short time before he died, as to the circumstances under which he was injured, were admissible for defendant as dying declarations against his interest, in a suit for injuries resulting in his death, though not constituting res gestae.</p>

<p>Chattel Mortgage—Evidence—Registration.</p> <p>A chattel mortgage, though duly registered, is not admissible against one not a party thereto until its execution is proven as at common law.</p>

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

<p>-Appeal from the District Court of Hunt. Tried below before Hon. T. D. Montrose, Special Judge.</p>

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

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

<p>1. —Statement of Facts—Affidavits in Aid of.</p> <p>Affidavits of the attorneys in the case and the trial judge can not be: considered in aid and explanation of the requisite approval of a statement, of facts,—such matters not having relation to the jurisdiction of the appellate court. Rev. Stats., art. 998.</p> <p>2. —Same—Approval by Judge—Sufficiency—Disagreement of Counsel Not. Shown.</p> <p>Where a statement of facts properly entitled, numbered and filed purported to give the testimony in the case and none other, and at the end of' the testimony was indorsed “Approved," followed by the signature of the-trial judge, but it was not signed by the attorneys, and the judge did not certify that they had not agreed upon a statement, or that they had disagreed and he had thereupon made out the statement, it will he presumed in favor of the regularity of official action that before he so approved the-statement the attorneys had disagreed, and such approval is therefore held sufficient.</p> <p>3. —Evidence—Condition of Freight.</p> <p>Where it was an issue whether certain cotton, receipted for by a shipper as in good order, was injured by water before being received on the ship or afterwards, it was competent for the mate of the ship to testify that he-remembered some cotton being wet when loaded, though he could not state-positively it' was the cotton in question, and to state further that- as a general rule cotton was receipted for as being in good condition if it was apparently so, although he had testified that he did not know why the cotton-was receipted for in good condition.</p> <p>4. —Same—Comment on Weight of Evidence.</p> <p>A remark made by the court in sustaining objections to the evidence of’ the mate, to the effect that the expressions “in good order” and “in good, condition” meant substantially the same, was on the weight of the evidence.</p> <p>5. —Same—Objections Going to Weight, Not Admissibility, of Evidence.</p> <p>Objection that the witness failed to identify the cotton of which; he spoke-wen t to the weight of the testimony, and not to its competency.</p> <p>6. —Same—Practice—Objection Below.</p> <p>An objection to evidence not made on the trial at the time if- was-offered will not be considered on appeal.</p> <p>7. —Same—Opinion.</p> <p>It was not -competent for a witness to testify that In his opinion the-cotton was not in good order when received on the ship, as tho/t was for the jury to determine. If there was error in excluding his opinion as to whether-the wet condition of the cotton was due to salt water or to rain, the error was harmless where he testified as a fact that it was wet when received by the-ship.</p>

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

<p>School' Land—Sale by Purchaser—Actual Settlement.</p> <p>Where T., as the owner of land other than school land under Revised Statutes, article 4218fff, purchased a tract of school land from the State, his subsequent sale thereof to another was valid and effectual, irrespective of whether or not his vendee became an actual settler on the land. Following Nesting v. Terre,,, a < ic^as, x„.</p>

<p>Appeal from the District Court of Harrison. Tried below before Hon. Richard B. Levy.</p>

Tried below before Hon. Sam B. Scott. Clifton and others brought suit against- the Methodist Episcopal Church South, and others, and obtained judgment from which this appeal was prosecuted.

' Appeal from the District Court of Travis. Tried below before Hon. R. L. Penn. Riddick sued and had judgment against Ellis, executrix, who .appeals.

<p>1. —Lease by Parol for Longer than One Year—Statute of Frauds.</p> <p>By the terms of the statute of frauds (Rev. Stats., art. 2543, subdivs. 4, 5) a paroi lease of land for a longer period than one year is prohibited, and such a lease will not be held enforcible as a valid paroi lease for one year only.</p> <p>2. —Same—Part Performance.</p> <p>In an action by a landlord against the tenant for rent of land wherein the tenant set up that the paroi lease contract, being for a longer period than one year, was inhibited by the statute of frauds, it was competent for the landlord to show, as taking the case out of the statute by part performance, that the tenant had taken possession of the premises under the lease and made monthly payments of rent thereunder.</p>

<p>1.—Admissions—Railroad Conductor—Authority.</p> <p>Where it in no way appeared that the delay, concerning which the statements of a conductor were offered as admissions of negligence, was one to the fault of such conductor, or that the schedule of the delayed train was in any manner under his control, or that he had authority to speak for the railway company in such matter, the statements were not admissible.</p> <p>E.y^Carriers of Freight—Connecting Lines—Defective Car.</p> <p>' Where a railway company receives from a connecting line a defective car, loaded with cattle, and undertakes to transport the cattle in such car, it thereby makes such car a part of its own agency, and Is liable the same as though the car was its own./</p>

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

<p>Appeal from the County Court of Mitchell. Tried below before Hon. W. B. Crockett.</p>

<p>Appeal from the County Court of Montague. Tried below before Hon. W, W. Cook.</p>

<p>Appeal from the County Court of Mitchell. Tried below before Hon. W. B. Crockett.</p>

<p>Appeal from the District Court of Hunt. Tried below before Hon, T. D. Montrose, Special Judge.</p>

<p>Appeal to County Court—Pleading New Matter.</p> <p>A plea in reconvention not urged by the defendant in the justice court can not be set up on appeal to the county court, and the fact that the case went off in the justice court on a demurrer to plaintiff’s cause of action, and that defendant’s counsel stated orally in the county court that defendant relied upon the same matters of defense as were pleaded, and relied upon by him orally in the justice court, including his plea in reconvention, which statement was at the time made in no way contradicted by plaintiff’s attorney, did not change the rule.</p>

<p>1. —Disqualification of Judge—Special Term of Court.</p> <p>Where a special term of the district court was duly ordered by the district judge, and when the time designated for it had arrived the judge was holding regular sessions of his court in another county of the district, an election by the .bar of a special judge to hold such special term was authorized and valid. Following Railway v. Huff, 2 Texas Law Journal, 438,</p> <p>2. —Negligence—Charge—Railway Switchman.</p> <p>In an action for personal injury to a railroad switchman injured while -making a flying switch by reason of the sudden drawing away of a certain car on which he stood, without notice to him, a charge of the court was not subject to objection as instructing that such sudden drawing away of the car was negligence where it instructed in the same connection that before the jury could find for plaintiff they must find that it was the duty of the foreman in charge of the switching to give plaintiff notice of the intended movement of the cars, and that he failed to give such notice, and that such failure was negligence and the proximate cause of the injury.</p> <p>3. —Same—Assuming Fact.</p> <p>The charge did not assume that the foreman failed to inform plaintiff of the method of handling the cars; nor did it justify plaintiff in attempting to step across to the top of the car that was suddenly moved without notice if he believed that all the cars in that train were to be then detached from the engine for the flying switch where the jury were required to find that it was the duty of another switchman to uncouple the proper cars at the time, and that his failure to do so was negligence.</p> <p>4. -—Same—Negligence Question for Jury.</p> <p>A special charge was properly refused which took from the jury the right to determine whether or not the facts stated therein relative to plaintiff’s action in attempting to step across to the top of the car would, under all the facts, constitute negligence.</p> <p>5. —Same—Special Charge.</p> <p>It was not error to refuse a special charge which, so far as applicable, was embraced in the main charge.</p> <p>6. —Personal Injury—Verdict Not Excessive.</p> <p>A verdict for $15,000 for permanent personal injuries to a railroad switch-man, 26 years old and earning $90 per month, resulting in breaking the bones of one leg*, rendering it shorter than the other, attended with much suffering, and putting him on crutches from the date of the injury until the trial, eleven months thereafter, is held not excessive.</p>

<p>Bond to Pay Freights—Liability Under—Estoppel,</p> <p>To secure dispatch in the loading of export cotton on their ships appellees executed to appellant, an agent of railways, a bond to secure him in the payment of freights for all cotton delivered at their ships’ sides and loaded. Cotton was transported to various consignees in Galveston, and shipped on appellees’ vessels and the freights due the railways paid thereafter, on demand by appellees. This was not always true of cotton consigned to D. & Co., a firm from which the appellant had not exacted prepayment of freights, a fact of which appellees were advised. The bill of one cargo of D. & Co. cotton shipped on their vessels was returned by appellees to railways indorsed that D. & Co. paid their own freight bills. Subsequently two cargoes of D. & Co. cotton were shipped on appellees’ vessels, the freight bills oí which were presented to D. & Co. and by them held up on questions of weights. Finally the appellant, as agent of the railways, withdrew the bills from D. & Co., who a few days later failed. The suit is against appellees on the bond, and the only issue submitted to the jury was that of estoppel in pais raised by the answer, and the verdict and judgment was for defendants, appellees here. On the whole case this court holds that under the bond the railways waived but the one right to hold the cotton for freights; that the bond covered all cotton received by the appellees for shipment; that estoppel does not apply, and that under the bond appellees were liable.</p>

<p>Appeal from the District Court of Williamson. Tried below before Hon. E. L. Penn.</p> <p>Peaslee sued Walker to recover on notes and foreclose a vendor’s lien, "and appealed from a judgment for the amount of the notes, but which denied him foreclosure.</p>

<p>Fundamental Error—Judgment Exceeding Claim.</p> <p>Judgment in excess of the amount claimed in plaintiff’s petition, presents fundamental error, a ground for reversal though not assigned as such.</p>

<p>1. —Negligence—Injury to Person on Track.</p> <p>Evidence considered, and held to support a finding of -negligence on the part of defendant railway and due care on part of deceased, in the case of one run down and killed. where several railroads crossed, involving conflicting evidence as to rapid running, failure to stop or to give signals for crossing, absence of headlight, and obstructed view, and the effect of distraction of the attention of deceased by the presence of several engines and trains on the various tracks.</p> <p>2. —Discovered Peril—Charge—Invited Error-</p> <p>A judgment will not be reversed because of thé submission of the issue 'of negligence arising on discovery of the dangerous situation of one guilty of contributory negligence without sufficient evidence to raise that issue, where the defendant requested a charge involving a submission of the same issue.</p> <p>3. —Same.</p> <p>The rule as to waiver of error in submitting an issue not raised by the evidence by requesting a charge upon it, will not apply to an instruction, apparently asked after the court’s charge was given, but will where nothing indicates whether the charge was asked before or after that of the court.</p> <p>4. —Railway Crossing—Failure to Stop.</p> <p>The statute requiring, trains to be stopped before crossing another railway (Rev. Stats., art. 4507) applies as well to the case of injury to pedestrians at such crossing as to collision between trains; and failure to comply is negligence in law.</p> <p>5. —Charge—Undue Repetition.</p> <p>A correct charge may be properly refused when it will unduly emphasize the issue by repetition of instructions already given.</p> <p>6. —Contributory Negligence.</p> <p>The fact that the injured party discovered the approaching train can. not be made conclusive as to his contributory negligence by the charge, regardless of the rate of speed or the manner in which the train was run.</p> <p>7. —Discovered Peril—Charge.</p> <p>An instruction to find for defendant if the injured party went on the track in such close proximity to an approaching train that it could not be-stopped in time to avoid striking him, was not affirmative error, nor equivalent to requiring every possible means of avoidance regardless of consequences.</p>

Tried below before Hon. Marshall Surratt. Fisher and others appeal from a judgment for defendants in a suit brought by them against the telephone company and the Waco Gas Company.

Court of McLennan. Tried below before Hon. Marshall Surratt. Keas sued Gordy for the recovery of land, and had judgment, from which the defendant appealed.

<p>1.—Sheriff’s Return—Description of Land.</p> <p>- _ While it is- essential that a sheriff’s return upon an execution, under which" land is levied upon and sold, as' well as his deed made by virtue thereof, should' identify. the. land with reasonable' certainty, yet every reasonable rule of construction should be invoked to ascertain, from the description aided ,by ' extrinsic -evidence, what property is intended to -be conveyed.</p> <p>2:—Same—Fact Case. - ■</p> <p>' A sheriff’s.return upon execution and his deed described the land levied on and sold as “about 1-3 of a league of land,” giving the county and general location, “being a part of the league and labor granted as the headright - of Thos; P,; Crosby; bearing date September 5, 1848.” ' One-third of the league and. labor, granted to Crosby" was' located in the county named and" was patented-io-Crosby on-the date mentioned, the remainder of the league being located in another county. Held that the description was sufficient to identify" the land so' patented".' " "</p> <p>3.—Trespass'to Try Title-^Pleading. '</p> <p>A defendant iñ trespass to try title is not precluded from showing an outstanding title in. a third party under his plea of not guilty, by having plead' specially the statute of limitations and improvements made in good faith..' . .</p>

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

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

<p>1. —Master and Servant—Fellow Servants.</p> <p>Where two servants of a corporation not affected by the fellow servants act are working together, the mere fact that one of them is the “boss” will not of itself render the corporation liable for injury resulting from his negligence in directing the other servant as to the work.</p> <p>2. —Same—Pleading and Charge.</p> <p>Where the allegation in plaintiff’s petition in an action for negligent personal injury was that the defendant corporation had given K., one of its servants, power or authority to direct and control plaintiff, etc., it was for the court to charge to the effect that defendant would be liable if K. had its “permission and consent” to direct plaintiff in the work. Mere consent or permission to so direct, unaccompanied by a duty on plaintiff’s part to obey K.’s orders, would not fix liability on the employer corporation.</p> <p>3. —Same—Inference Upon Inference—Vice-Principal—Presumptions.</p> <p>Where it was merely an inference from the evidence that defendant had consented for or permitted K. to direct plaintiff in the work, and no express authority therefor was shown, nor that knowledge of K.’s assumed authority was brought home to defendant or to anyone standing in the relation to it of a vice-principal, to infer such authority from the consent so inferred would be presumption upon presumption.</p>

<p>1. —Judgment—Void and Voidable.</p> <p>If it could be held in any case that in a proceeding to set aside an execution sale on the ground that the judgment was rendered within a year of the death of the testator, and therefore before the excutors could be required to plead under the statute, would avoid the judgment, it does not appear from the pleadings in this case at what time the decedent died, or when the executors were appointed, and accordingly the judgment was not void.</p> <p>2. —Same—Service—Failure as to One of Two Executors.</p> <p>Failure to secure service on one of two executors, service being had on the other, if error at all, could, at most, but render a judgment against the estate voidable.</p> <p>3. —Same—Execution Sale—Setting Aside—Irregularities in Judgment.</p> <p>Errors of procedure in procuring a judgment valid on its face can not be looked to in determining the validity of a sale made under it.</p> <p>4. —Same—Abatement—Jurisdiction.</p> <p>A suit to enjoin or set aside a judgment merely voidable must be brought in the court in which it was rendered. Judgment and sale in this case upheld.</p> <p>5. —Attorney—Buying at Sale Under Process He Controls.</p> <p>An attorney stands in no such relation of trust toward the adverse party as will prevent him from buying the property of defendant for himself at judicial or execution sale under process controlled by him as counsel for plaintiff. Douglass v. Blount, 95 Texas, 369.</p> <p>ON REHEARING.</p> <p>6. —District Court—Jurisdiction—Judgment—Direct or Collateral Attack.</p> <p>Under the law providing two district courts in Galveston County with concurrent territorial jurisdiction a suit to set aside a judgment rendered in one, the Tenth District, was filed in the other, under a provision requiring odd numbered suits to be filed in that, the Twenty-fifth District Court, and even numbered in the Tenth; it was then transferred by that court to the Tenth District as the one having jurisdiction to set aside such judgment, and there, on the accession of a judge who had been of counsel, transferred to and tried in the Twenty-fifth under a provision authorizing such transfer in case of disqualification of the judge. Held (1) that the first transfer, to the Tenth District, was perhaps proper; (2) if not so, the filing in that court, under order of transfer, was equivalent to an original institution of the suit in the Tenth District; (3) the retransfer to the Twenty-fifth, on disqualification of the judge, was authorized by the law; and (4) the trial after such transfer continued to be a direct and not a collateral attack on the judgment.</p> <p>7. —Judgment—Order of Sale—Agreement.</p> <p>Where the attorney taking judgment against the executors of an estate for foreclosure of a lien for city taxes, on suggestion that but one had been served, promised, if such were the case, to refund the costs, such undertaking was no ground for setting aside a subsequent sale of the property under the judgment where defendants took no further action in the matter.</p> <p>8. —Joint Executors^Judgment on Service on One.</p> <p>Service upon only one of two joint executors of an estate will support a judgment against the estate.</p> <p>9. —Executors-—Judgment—Time to Answer.</p> <p>The right of executors to a year from the death of the testator in which to answer suits against them is in the nature of a personal privilege which, in an action to set aside the judgment, must be asserted in the trial court and can not be raised for the first time on appeal.</p> <p>10. —Executors—Judgment.</p> <p>Suit and judgment and sale of property of an estate thereunder held to be against defendants as executors and not personally.</p>

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

<p>Appeal from the County Court of Nolan. Tried below before Hon. W. L. Grogan, Special Judge.</p>

<p>Error from the County Court of Dallas. Tried below before Hon. E. D. Lauderdale.</p>

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

<p>1. —Statute of Frauds—Parol Gift of Land—Possession and Improvements.</p> <p>The taking possession and making valuable improvements on the faith of the gift are essential ingredients to take a paroi gift of land out of the operation of the statute of frauds and make it binding.</p> <p>2. —Same—Paroi Partition of Land to Children—Acquiescence.</p> <p>But actual possession and improvements are not necessary in a case where a father divided his estate among his children by paroi gift and partition of lands prior to his death, and the children have each held and claimed their parts in severalty for more than twenty years, since such partition is binding upon them.</p> <p>3. —Same—Paroi Lease—Possession.</p> <p>_ Where the issue of limitations was in the case it was competent for plaintiff to prove that possession of the land by defendants’ ancestor was by virtue of a lease by and under him, plaintiff, although it was a paroi lease, and for a longer period than one year.</p> <p>4. —Common Source—Tax Deed.</p> <p>A tax deed purporting to evidence the sale of land of an unknown owner can not be given in evidence in trespass to try title to show that the parties do not claim from a common source, since it can not be known from such deed whether they claim from the same or a different source.</p>

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

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

<p>Appeal from the District Court of Harris. Tried below before Hon. Forman G. Kittrell.</p>

<p>1. —Community Property—Survivor—Limitation.</p> <p>Limitation runs against the heirs of the wife and in favor of the husLand having possession of the community personalty from the expiration of a reasonable time for him to settle the community debts; it is not suspended, as in case of trusts, until he repudiates their rights.</p> <p>2. —Same—Facts.</p> <p>Evidence considered and held to support the plea of limitation against the suit of heirs of the wife for recovery of her interest in community property from the surviving husband.</p>

<p>Sheriff—Failure to Return Execution.</p> <p>A sheriff who fails to return an execution placed in his hands, is liable, under Revised Statutes, article' 2387, for the full amount of the judgment, unless it is made to appear that no injury resulted to the plaintiff; and merely showing that the defendant in execution was insolvent does not absolve the sheriff from liability, especially where there is evidence tending to show that he had property subject to the execution.</p>

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

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

<p>1. —Assignment of Lease—Description—-Parol Testimony.</p> <p>An assignment of a lease containing no sufficient description of the instrument, but calling for it to be attached to the assignment, should have been admitted in evidence when the subject matter was made certain by paroi evidence identifying the lease which was intended to be but was not in fact attached.</p> <p>2. —Lease—Wife’s Separate Property—Joinder—-Ratification.</p> <p>A lease by the husband of the wife’s separate real property for a term exceeding one year, without the joinder of the wife, is null and void; but the wife may ratify such lease by the husband by joining in and acknowledging an assignment of it.</p> <p>3. —Same—Assignment—Rent—Lessee.</p> <p>When'a lessee, with the consent of the landlord, assigns the lease for the term, the assignee becomes charged with the rent and the original lessee is no longer liable therefor unless otherwise specifically agreed.</p> <p>4. —Same—Tenant—Landlord—Assignment—Consent.</p> <p>A tenant can not assign a lease or sublet premises without the consent of the landlord (Rev. Stats, art. 3250); but when such consent is given, either in the written lease or afterwards, the original lessee is relieved from further liability.</p>

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

<p>1. —Taxes—City Charter.</p> <p>A city has the right to become a litigant in enforcing the collection of its taxes regardless of its charter provisions.</p> <p>2. —Same—Plea in Abatement.</p> <p>Where it is not made to appear in the pleading that State and county taxes are unpaid, a plea in abatement that the State and county are necessary parties to a suit by a city for taxes, is properly overruled.</p>

<p>Appeal from the District Court of Sherman. Tried below before Hon. Ira Webster.</p>

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

<p>1. —Law of Another State—Common Law—Proof of.</p> <p>Where the proof to show that damages against a telegraph company for mental anguish could not be recovered in New Mexico consisted merely of provisions of the Compiled Laws of New Mexico to the effect that the common law rule of practice and decision prevails in that Territory, and that appeals from the courts thereof are to the United States Circuit Court of Appeals, this was insufficient in the absence of any showing as to how the Supreme Court of New Mexico and the tribunal having revisory power over its decisions hold on the question.</p> <p>2. —Telegraph Company—Mental Anguish—Pleading—Special Damages.</p> <p>In an action to recover damages for failure to deliver a message announcing the death of a brother of plaintiff’s wife whereby she was deprived of opportunity to have the body brought home for burial proof to show that the person sending the message was without money to properly dress the body, and that it was buried by strangers, and that plaintiff’s wife suffered humiliation by reason of such facts, was not admissible in the absence of pleading specially setting forth such facts, since such humiliation was a special or remote consequence for the defendant’s breach of duty.</p> <p>3. —Same—Charge Misleading.</p> <p>In view of the absence of such special pleading and the admission of the evidence as to the facts indicated and the resultant humiliation, a charge to the effect that when the nature and importance of a telegraphic message are apparent from the terms used, no further explanation is required in order to render the company liable for negligence, was misleading, since it was properly applied by the jury in the consideration of the facts so improperly admitted in evidence.</p>

<p>Citation—Copy of Petition—Judgment by Default.</p> <p>Where plaintiffs petition did not state the county of defendant’s residence, and the citation was issued to a county other than that in which the -suit was brought, and was served on defendant there without any accompanying copy of plaintiffs petition, such citation and service were insufficient to sustain a judgment by default. Rev. Stats., arts. 1191, 1214, 1215, 1219.</p>

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

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

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

<p>Deed—Parol Evidence.</p> <p>In conveyances oí real estate paroi evidence is not admissible to show that any other than the vendee named in the conveyance is bound as an undisclosed principal, even though he accepts the benefit. Following Sanger v. IWarren, 91 Texas, 472.</p>

<p>Appeal from the District Court of Lavaca. Tried below before Hon. M. Kennon.</p> <p>Adams and wife appeal from a judgment for defendant in their suit against the railway company.</p>

Tried below before Hon. S. C. Coffee. The telegraph company appeals from a judgment for plaintiff, in a suit brought against it by Noland.

Tried below before Hon. Marshall Surratt. The Travelers Protective Association appeals from a judgment for plaintiffs in a suit brought against it by Dewey and another.

Tried below before Hon. Sam. R. Scott. The city appeals from a judgment denying it certain relief sought in its suit against Green for foreclosure of its lien for taxes.

<p>1. —Illegal Contract—Fire Limits—Combustible Material.</p> <p>A contract to furnish labor and material, a greater part of which was combustible, for improvements upon premises situated in a city and within certain limits prescribed by municipal ordinance, which ordinance provides that no building of combustible material and not fireproof shall be erected within these limits, is illegal and no recovery can be had thereon for part performance, the completion of which was stopped by injunction ■ by adjoining property owners.</p> <p>2. —Evidence—Judicial Knowledge—Combustible Material.</p> <p>Though not testified to that material used in building was combustible, yet, where the undisputed evidence shows that the greater portion of such material was wood, held, that the fact that wood is combustible is too universally known to require proof.</p>

<p>Appeal from the District Court of Haskell. Tried below before Hon. H. E. Jones.</p>

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

<p>1.—Contract—Variance—Different Cause of Action.</p> <p>Where plaintiff sued upon a written contract of employment to sell certain property, he was not entitled to recover upon proof showing that the contract had been revoked by defendant, and that the services were rendered under a subsequent oral contract variant in a material particular from the written one, although, except as to such particular, he was to sell “under the terms” of the written contract.</p>

<p>Appeal from the District Court of Lipscomb. Tried below before Hon. B. M. Baker.</p>

<p>1. —Action Against Nonresident—Amendment Without Service.</p> <p>Plaintiff sued defendant as a nonresident corporation, with an ancillary garnishment against a resident party. After notice had been served on defendant, the plaintiff filed an amended petition alleging that defendant was a partnership firm composed of A. and other persons to plaintiffs unknown, and without serving notice of the amendment on defendant, who had not answered, took judgment by default. Held, that the amendment set up a new cause of action, and without service of notice thereof, the judgment was unauthorized and void.</p> <p>2. —Same—Judgment Against Garnishee.</p> <p>The judgment taken at the same time by plaintiff against the garnishee upon its answer that it was indebted to the defendant was also unauthorized and void because there was no valid judgment against the defendant in the. original proceeding.</p> <p>3. —Partnership—Judgment by Default Against—Names of Members.</p> <p>A judgment by default against a partnership is invalid where plaintiff’s-, petition does riot allege the names of the individual members composing the firm. -</p>

<p>1. —Married Woman—Suit by, Without Husband's Joinder—Community Property—Abandonment.</p> <p>A married woman is not entitled to sue alone and without the husband’s joinder to recover damages for personal injury to herself, on the ground that the husband has abandoned her for eight years and contributed nothing to her support, where the evidence does not show that the abandonment was through the husband’s fault, or that he refused to bring the suit, but does show that their separation was of her own choosing.</p> <p>2. —Same—Verdict—Special Issue and General Finding.</p> <p>Where the court submitted the case to the jury upon two issues—plaintiff’s right to sue without the joinder of her husband, and her right to recover for the alleged negligence of defendant—and directed a special verdict upon her right to sue, and the jury returned a gerieral verdict in favor of the defendant, this included a finding against plaintiff on her right to sue.</p>

<p>1. —Railways—Connecting Lines—Venue.</p> <p>Section 1, chapter 25, page 214, Acts of Twenty-sixth Legislature, providing for venue of suit for damages to property shipped over lines of two or more railways within the State, authorizes such suit to be brought against one or all in any county into which either extends, and applies to an action for injury to live stock where the shipper accompanied the shipment.</p> <p>2. —Same—Interstate Commerce.</p> <p>The act regulating venue in suits against connecting lines of railway in this State (26th Leg., chap. 25, sec. 1, p. 214) applies where the shipment extends over lines beyond the State, and is not, in so doing, an unlawful regulation of interstate commerce by the State.</p> <p>3. —Evidence—Depositions—Objections to Manner and Form of Taking.</p> <p>It would seem that an objection to the introduction of a deposition for want of service of notice of interrogatories on the party objecting goes to the manner and form of taking, and can not be urged for the first time when they are offered in evidence on the trial.</p> <p>4. —Evidence—Deposition—Notice—Waivei—Bill of Exceptions.</p> <p>Where a bill of exceptions to the admission of a deposition over objections for want of notice of the interrogatories is so qualified as to indicate that notice may have been waived, the bill of exceptions should negative the fact of such "waiver, to make the point available on appeal.</p> <p>5. —Evidence—Harmless Error.</p> <p>Improper admission of evidence is harmless error where the same facts were established by another witness whose testimony was admitted without objection.</p> <p>6. —Charge.</p> <p>An instruction is to be considered in connection with other portions of the charge, and is not erroneous when, so considered, the effect is to convey a proper statement of the law.</p> <p>7. —Charge—Railways—Connecting Lines.</p> <p>The jury having been instructed that each of several connecting lines of railway was “responsible for the damages occurring on its own line of road only,” and was to be held only for the damages “sustained by plaintiff to such shipment while in the possession of such defendant,” a requested charge that one road was not liable for damages sustained on another “which only became apparent or developed” after the property was received from the latter, though correct, might properly be refused.</p> <p>8. —Connecting Carriers—Pleading—Evidence.</p> <p>An intermediate one of several connecting carriers sued for damages to live stock in transit could bring out, in cross-examination of plaintiff, that some of the injuries were caused by projecting nails in the car in which it received the shipment from its connecting line, so as to avoid liability therefor on its own part, though such connecting company objected to the evidence because not warranted by the allegations of plaintiff’s petition..</p> <p>9. —Damage to Live Stock—Results After Arrival.</p> <p>Evidence that mares transported by rail lost their foals after arrival at' their destination was admissible as bearing on the extent of the injury received in their transportation.</p> <p>10. —Damages—Interest.</p> <p>Interest on damages to live stock in shipment irom the date of the injury,, may be recovered, where claimed in the pleadings, as an element of damages.</p>

<p>1. —Evidence—Value—Opinion.</p> <p>A witness may give his opinion of the value of the use of property, though it has no market value and he is not qualified as an expert, where he has and utilizes means for forming an intelligent opinion superior to those of the jurors.</p> <p>2. —Water—Use by Trespasser.</p> <p>No more than nominal damages are recoverable for the use by a trespasser of ^water rising upon and flowing off from plaintiff's land, where such use has not interfered with any which the plaintiff would have made of it.</p> <p>3. —Stenographer—Employed by Attorney.</p> <p>Objection to the selection, as official stenographer, of a person in the employment of an attorney in the cause, is addressed to the discretion of the court; but the practice is criticised.</p>

<p>Carrier of Animals—Measure of Damages.</p> <p>The measure of the damages recoverable for delay and mishandling of cattle shipped to market is the difference between their value at the time and in the condition they reached market and that at the time and in the condition they should have been delivered there; a charge which makes it the difference between value at the time and in the condition they were sold and that when they reached there, where they were sold three days after arrival, is erroneous.</p>

<p>1. —Contract—Announced Intention to Repudiate.</p> <p>Where one pkrty to a contract announces his intention not to perform it, the other may treat the contract as at an end, and recover the amounts paid under it.</p> <p>2. —Same—Benefit Insurance—Change of By-Laws.</p> <p>The beneficiary in- an assessment insurance policy, upon the enactment of a by-law by the governing body reducing the amount payable upon his, certificate in case of death from $5000 to $2000, may treat the contract as repudiated by the insurer and maintain suit to recover back the amounts previously paid upon it, though the by-law could have been treated as void and recovery had according to the original contract in case of death.</p> <p>—Same.</p> <p>A by-law of a benefit insurance company reducing the amount payable at death on a benefit certificate, with a proviso for paying the sum originally named “so long as the emergency fund of the order has not been exhausted,” was a repudiation of its contract which would authorize suit by the holder of a benefit certificate to recover back the sums paid,.though there still remained $400,000 in the emergency fund of the society.</p> <p>4.—Repudiation of Contract—Waiver—Election.</p> <p>The fact that the holder of a benefit certificate continued the payment of assessments after the enactment of a by-law of the 'society reducing the amount to be paid on death, was not an election to treat the contract, in such altered form, as still in force, where the. payments were made under protest and in hope of a repeal of the by-law.</p>

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

<p>1. —Assignment of Error—Special Findings.</p> <p>Assignments of error, based on the overruling of objections to evidence and of a motion for new trial and the refusal of requested instructions, presenting the claim that a deed to the daughter of grantor conveying certain land, etc., as constituting “fully her pro rata share of my estate, real and personal,” embraced, in law, only her share of the interest of the grantor in the community property of himself and his deceased wife, and could not be shown by paroi evidence to have been intended as a satisfaction of her entire interest in the community property, should be considered, though no attack was made on a special finding of the jury, upon such evidence, that by “my estate” the grantor meant “the entire community estate.”</p> <p>2. —Trespass to Try Title—Pleading—Deed—Mistake.</p> <p>Under a petition in the ordinary form of trespass to try title, a deed to a granddaughter of grantor named therein as "Willis” may be shown to have been so made by mistake, and intended for his granddaughter “Willie.”</p> <p>3. —Deed—Estate for Life—Remainder to Children.</p> <p>The ruling in Simonton v. White, 93 Texas, 50, on former appeal of this case, as to the effect of a deed for life with remainder to the heirs of the body of grantee, followed.</p> <p>4. —Community Property—Married Woman—Estoppel.</p> <p>A married woman inheriting a part of the interest of her deceased mother in community property, and receiving from her father a deed to land, in full satisfaction of her interest in his estate, which conveyed to her for life only, with remainder to the heirs of her body, was not estopped by paroi evidence showing that she and her sisters, to whom the father also made conveyances, accepted those deeds as full settlement by the father for their entire interest in the community property; as to the interest inherited from her mother, her absolute title could not be reduced to a life interest by such estoppel; and her conveyance, joined by her husband, passed title in fee to such interest derived from the mother though the deed from the father limited her to a life estate.</p> <p>,5.—Attorney—Minor—Pleading.</p> <p>The attorney for minor litigants could not have judgment awarding them one-half of the real estate recovered for their. clients, where they were not made parties to the suit and had no pleadings entitling them to such relief.</p>

<p>Appeal from the District Court of Falls. Tried below before Hon. Sam E. Scott.</p>

<p>Appeal from the District Court of El Paso. Tried below before Hon. A. M. Walthall.</p>

<p>1. —Fraud—Concealment.</p> <p>Where one party has prevented' another from coming to the knowledge of his rights he can not avail himself of the statute of limitation; and where a special relation of trust and confidence (as parent and child) exists and one party, having knowledge of material facts, contracts with another without disclosing such knowledge, the mere silence, under the circumstances, becomes fraudulent concealment.</p> <p>2. —Interest in Land—Partition—Limitation.</p> <p>Plaintiff, not knowing the extent of her interest in real property and having been induced by her mother to believe that the property was bought with community funds of her mother and her deceased father, instead of the separate funds of the father and that her interest was only one-half, could not be bound by a partition of the land made on that basis. Limitation did not commence to run against her until she knew or was charged with the knowledge of her interest and of the facts showing that her mother had repudiated the trust, and the evidence, which is here considered, did not tax her with such knowledge.</p> <p>3. —Limitation—Charge.</p> <p>Where limitation under the four years statute was submitted to the jury and decided against defendant on issues which equally disposed of his plea of limitation under the five years statute, a refusal to submit the latter was no error.</p> <p>4. —Impeachment of Witness,</p> <p>That a witness does not remember having made statements out of court contradictory to his testimony will not prevent the admission of his contradictory statements.</p> <p>5. —Contradicting One’s Own Witness.</p> <p>The rule that a party will not be permitted to impeach his own witness does not preclude him from proving the truth of any particular fact by other competent testimony in direct contradiction to what the witness may have testified.</p> <p>6. —Newly Discovered Evidence.</p> <p>An order to obtain a new trial on the ground of newly discovered evidence it must be shown that the knowledge of the existence of the new evidence was acquired subsequent to the former trial, and that it is not due to a want of diligence that it was not discovered in time to be used at the first trial; that such evidence is material, and not merely cumulative, and, if admitted, would probably change the result upon another trial.</p>

<p>1. —Practice on Appeal—Motion—Bill of Exception.</p> <p>In order that the ruling of the trial court in refusing a motion to withdraw a case from the jury trying it and submit it to another or continue may be revised; a proper bill of exceptions to the action of the court must be taken.</p> <p>2. —Same.</p> <p>An exception noted in an order refusing a motion can not take the place of a bill of exceptions showing all the facts on which the court acted, though the motion was supported by affidavit which the record does not show to have been controverted.</p> <p>3. —Master and Servant—Negligence.</p> <p>Facts attending the injury of a fireman on railway engine from defects in the fastening of the apron covering space between the engine and the tender considered and held to support a finding of negligence by the master and due care by the injured servant.</p> <p>4. —Charge—Undue Repetition.</p> <p>The cases in which charges have been held erroneous because giving undue emphasis by repetition are those of charges embodying specifically certain facts and thereby giving them too much prominence; a charge which merely repeats legal principles is not on the weight of evidence.</p> <p>5. —Charge—Omission.</p> <p>A charge which merely directed a verdict for defendant in case certain facts were found to exist was not to his prejudice.</p>

<p>1. —Personal Injury—Allegation.</p> <p>A general allegation in a petition that plaintiff was injured internally was sufficient to admit proof of injury to the womb in the absence of a special exception to the petition requiring her to set out more definitely her injuries. International & G-. NT. Ry. Co. v. Beasley, 9 Texas Civ. App., 569, distinguished.</p> <p>2. —Same—Expert Testimony—Life Expectancy.</p> <p>Testimony of a witness, who had qualified as an expert, that, unless plaintiff underwent an operation which, in his opinion, would be very dangerous, her" injuries would probably shorten her life_expectancy one'-half, is not open to the objection that it was a mere conclusion of the witness.</p>

<p>1. —Railway—Negligence—Passenger—Liability.</p> <p>A railway company is responsible only for the proximate consequences of the negligence of its baggage agent in losing a passenger’s ticket but is ■ not liable for consequences arising therefrom which the passenger could have avoided by the use of ordinary care.</p> <p>2. —Common Knowledge—Duty of Conductor.</p> <p>The duty of a conductor to eject from the train persons without tickets or who refuse to pay fare is a matter of such common knowledge that a passenger would be presumed to expect its performance.</p> <p>3. —Contributory Negligence—Ejectment—Case Distinguished.</p> <p>The act of plaintiff in allowing his wife to board the train without a ticket or money to pay fare was such contributory negligence as would preclude him from recovering damages caused by ejection and whether or not he had money to pay her fare is immaterial. St. Louis A. & T. Ry. Co. v. Maqkie, 71 Texas, "497, distinguished.</p>

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

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

<p>1. —Land Certificate—Community Property.</p> <p>W., a single man, came to Texas prior to October 1, 1837, and by virtue of his residence here for the ensuing three years became entitled to a land certificate. He married in 1842, and died soon afterwards, leaving his wife surviving, but no children. The certificate was issued to his heirs in 1846, and was sold by the wife before its location and was located by the purchaser. Patent for the land was issued in 1847 to “the heirs” of W. Held that the certificate, or the right to have it issued, was, at the time of W.’s marriage and death, personal property, and became community property of himself and wife, and on his death became the sole property of the wife under the fourth section of the Act of January 20, 1840.</p> <p>2. —Same—Act Not Repealed.</p> <p>The fourth section of the Act of January 20, 1840, dealing with the marital rights of parties and specifically with their common property, was not repealed by the Act of January 28, 1840 (Hartley’s Dig., art. 577), relating generally to the descent and distribution of intestates’ estates, nor is there such repugnancy between the two acts, passed at the same session, as will prevent the application of the rule that in such cases both acts should, if possible, be upheld.</p> <p>3. —Same—Equitable Title—Laches—Stale Demand.</p> <p>The owners of the land under the sale of the certificate by the wife being in possession of the land under regular chain of title from such purchaser dating back to the location, it was error, in an action of trespass to try title brought against them for the land by the heirs of W., to exclude proof of their title on the ground that it was an equitable title and their claim a stale demand, since, so long as the defendant can assert an equitable title without invoking affirmative relief, the doctrine of stale demand does not apply.</p> <p>4. —Same—Patent Inuring to Benefit of Assignee of Certificate.</p> <p>The issuance of the patent to the heirs of W. did not vest any title to the land in his brothers and sisters.</p>

<p>1. —Witness—Bias—Collateral Matter.</p> <p>Where a witness for plaintiff admits on cross-examination that he is a special friend of plaintiff, he can not ostensibly for the purpose of showing such bias, be interrogated as to a certain collateral matter of a character calculated to cast discredit on plaintiff.</p> <p>2. —Sale in Fraud of Creditors—Evidence—Reputation.</p> <p>Where plaintiffs purchased goods of M. which were afterwards attached by creditors of M„ on the ground that M. was insolvent and the sale to plaintiffs made in fraud of creditors, and plaintiffs sued the sheriff for wrongful attachment and conversion of the goods, the good faith of plaintiffs in purchasing the goods was an issue in the case, and it was competent for them to show that M.’s reputation for paying his debts was good at the time and place of their purchase.</p> <p>3. —Same—Damages—Attachment,</p> <p>Where the sheriff levied on the goods while in plaintiffs’ storehouse and kept the house closed for two months, it was error for the charge to make plaintiffs’ right to recover the rental value of the storehouse for such time dependent on their having no knowledge of the fraudulent intent of M. in selling them the goods, as the sheriff was in no event entitled to keep the house closed for any longer time than was necessary to inventory the goods.</p> <p>4. —Same—Fraud—Putting Upon Inquiry—Suspicion.</p> <p>To affect a purchaser of goods with notice of an intent on the seller’s part to defraud his creditors, there must be something more than the possession of facts such as would be calculated to create a suspicion of the seller’s fraud. In order to be charged with notice, the purchaser must be in possession of facts and circumstances such as would put an ordinarily prudent person on inquiry which, by the use of proper diligence on his part, would lead to a knowledge of such intention.</p> <p>5. —Same—Property Not Sold by Debtor.</p> <p>Where, after plaintiffs had bought the goods from M. and taken possession thereof, certain coal was delivered to them which M. had ordered, and they paid the owner of the coal therefor, and the coal was attached and converted by the sheriff acting in behalf of M.’s creditors, plaintiffs were entitled to recover the value of the coal.</p> <p>6. —Same—Value of License Lost Through Levy.</p> <p>Where plaintiffs’ storehouse was kept closed by the sheriff for two months after the levy, and plaintiffs thereby deprived for that time of the value of their license as retail liquor dealers, they were entitled to recover the value of the license for such time, and also the value of clerks’ hire for that period which they were compelled to pay.</p>

<p>1. —Carrier—Duty to Protect Passenger.</p> <p>The duty of a carrier to protect passengers from" assault and insults of third persons extends only to those cases where the wrong occurs in the presence of its agents or when the circumstances attending or preceding the injury might have been foreseen and prevented.</p> <p>2. —Same—Fact Case—Assault.</p> <p>The mere fact that plaintiffs wife, a passenger, while seated alone in a dark waiting room, was assaulted, does not show that defendant’s agents should have foreseen the assault.</p> <p>3. —Pleading—Allegation—Conclusions of Pleader.</p> <p>It is generally true that an allegation of a duty owing, negligent failure to perform it, and damage proximately resulting therefrom, is good on general demurrer. But this rule no longer applies when the pleader alleges the specific fact by which the field of his proof will be limited, or when it is plain from the entire petition that the general allegations are but conclusions of the pleader from the specific facts stated.</p>

<p>Appeal from the County Court of Falls. Tried below before Hon. W. E. Hunnicutt.</p>

<p>Appeal from the County Court of Hays. Tried below before Hon. Ed. R. Kone.</p>

<p>1. —Limitation—Adverse Possession—Inolosure.</p> <p>The inclosure and exclusive use of land as a pasture constitutes adverse possession under the five years statute of limitation (by registered deed) though the inclosure in question is a general one of over half a million acres, including many other surveys with the one in question.</p> <p>2. —Limitation—Deed from Partnership.</p> <p>A deed to land by a partnership firm as such, conveys the equitable title of such firm and will support limitation under the statute of five years.</p> <p>3. —Same—Firm or Corporation.</p> <p>A deed to land from Owen, Mullins & Co. was not void on its face as being a conveyance by a partnership, but sufficient to support the five years statute of limitation, since it did not appear on its face whether such company was a partnership or a corporation.</p>

<p>1. —Railway—Injury to Child at Crossing.</p> <p>Verdict for recovery of damages for injury to child at a railway crossing sustained on negligence in backing train without warning.</p> <p>2. —Contributory Negligence—Burden of Proof.</p> <p>A charge placing the burden of proving contributory negligence on the defendant in case of a child injured by backing a train over a street crossing, held proper.</p> <p>3. —Contributory Negligence—Getting on Cars—Charge.</p> <p>A requested charge was improper which held a child injured at a street crossing by a train to be guilty of contributory negligence if he intended to get on the moving cars, without reference to whether he actually attempted to do so.</p> <p>4. —Evidence—Declarations—Res Gestae.</p> <p>A declaration of an injured party constituting res gestae may be proved by the party making it.</p> <p>5. —Deposition—Leading Question.</p> <p>Leading questions may be permitted in a deposition, for the purpose of directing attention of a witness to matters forgotten by him, by reference to his previous statements.</p> <p>6. —Crossing—Signals—Bell and Whistle.</p> <p>The statute does not require the use of the whistle signal before backing a train over a crossing distant less than eighty rods, and it was error to charge that the omission so to do was negligence; but otherwise as to the signal by bell, which was required, in such case, to be rung till the crossing was passed or the train stopped.</p> <p>7. —Same—Question of Fact.</p> <p>Though the whistle signal was not, as matter of law, required by the statute before backing a train over a crossing less than eighty rods distant, it might be submitted to the jury, as a question of fact, whether its omission, under the circumstances, was negligence.</p> <p>8. —Charge—Negligence—Burden of Proof.</p> <p>A charge which put upon the defendant railway company the burden of proving that its bell was rung sufficiently to warn one of ordinary prudence of the backing of its train over a street crossing, was improper, as this was defendant’s negligence and required to be proved by plaintiff.</p> <p>9. —Contributory Negligence—Climbing on Cars.</p> <p>A charge taxing plaintiff with contributory negligence if injured while attempting to climb on moving freight cars, should not be qualified by adding, without the knowledge of defendant or its employes; defendant’s knowledge did not relieve plaintiff of the consequences of his act, except in case of negligence after discovered peril.</p> <p>10. —Damages—Double Recovery.</p> <p>A charge does not permit a double recovery, in a suit by a father and his minor son for their respective damages from personal injury to the latter, because the son is permitted to recover for the prospective diminution in his earning capacity after he shall have arrived at his majority, and the father to recover for the diminution in prospective contributions to his support by the son after the latter comes of age.</p> <p>11. —Damages—Parent for Injury to Child—Pleading.</p> <p>A father whose pleading claims damages for diminution in the earning capacity of his son during minority only, by reason of injury to the son’s person, can not recover, under such allegation, for any prospective diminution of the expected contributions of the son to his support after arriving at majority.</p>

<p>1. —Employer and Employe—Improper Discharge—Burden of Proof.</p> <p>In order for the employer to avail himself of the rule requiring an employe to find work elsewhere in case he is improperly discharged, the burden of proof is upon the employer to allege and show that the servant could, with ordinary diligence, have secured other work of a similar kind.</p> <p>2. —Same—Wages—Other Employment.</p> <p>The fact that a servant might have other wages at work elsewhere is not a complete defense to an action by a servant for being improperly discharged, but the deduction must be confined to the amount which could have been earned by the servant after such discharge, and is to be allowed .whether he actually worked or not.</p>

<p>Appeal from the District Court of Brewster. Tried below before Hon. B. C. Thomas.</p>

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

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

<p>•),_Carriers—Joint Defendants—Damages—Pleading—Jurisdictional Amount.</p> <p>In an action against the Texas & Pacific Railway Company and other carriers for damages to a shipment of cattle, a demurrer to plaintiff’s petition on the ground that the facts alleged were insufficient to show that the court had jurisdiction over the Texas & Pacific Railway Company because it did not claim any specific amount against said company, but merely stated that less than $2000 was claimed against each defendant, was not well taken where the total amount claimed in the action was sufficient to give the court jurisdiction.</p> <p>2. —Same—Misjoinder of Parties and Actions.</p> <p>Since it was within the power of the Legislature to permit a recovery of the whole of such damages as plaintiff claimed in one suit, there was no misjoinder of parties and actions.</p> <p>3. —Same—Cattle Shipment—Measure of Damages.</p> <p>In an action against a carrier for damages to a shipment of cattle plaintiff is entitled to recover the expenses of holding and feeding the cattle while waiting for cars in which to ship them, after order made for the cars. Following Railway Co. v. Campbell, 91 Texas, 561.</p> <p>4. —Same—Secondary Evidence—Orders for Cars.</p> <p>Where the records kept in the train dispatcher’s office showed the number of cars ordered during the time in question and no effort was made to produce them or excuse offered for not doing so, there was no error in excluding the testimony of the train dispatcher to show the number of cars ordered, the witness stating that he could not give the number from memory anywhere near accurately.</p> <p>5. —Same—Filling Order for Cars—Reasonable Time—Charge.</p> <p>In an action of damages for failure to furnish cars to a shipper within a reasonable time it was not error for the charge to assume that a failure to furnish the cars for nine days after order made for them was negligence, since the statute makes a failure to furnish them for six days ground for the statutory penalty in such case.</p> <p>6. —Same—Excuse for Failure to Furnish Cars.</p> <p>Evidence which merely showed a congested condition of transportation facilities about the time of plaintiff’s order for ears did not show a sufficient excuse for the carrier’s failure to furnish the cars within a reasonable time.</p> <p>7. —Same—Connecting Carriers—Joint Liability—Concurring Causes.</p> <p>Where cattle were shipped over several connecting lines and by reason of delays along the route reached their destination too late for market, each of the several lines was jointly liable with the others for the resultant damages where delay on its own line, concurring with delay on the other lines, caused the cattle to be too late for market, although such delay on the given line would not, but for the delay on the other lines, have produced that result.</p>

<p>1. —Carriers—Delay in Furnishing Cars—Charge.</p> <p>In an action for negligent delay of a carrier in furnishing a shipper with cars, a charge which seems to be on the weight of evidence in assuming that the delay constituted negligence will not be held error on that account where, in another paragraph, the question of whether such delay was negligence is treated as one for the determination of the jury.</p> <p>2. —Same—Unreasonable Delay—Negligence.</p> <p>Evidence considered and held to show no valid excuse for delay in furnishing a shipper with cars within a reasonable time, and to afford no basis for a charge that if the carrier used ordinary care and diligence to- furnish the cars, and could not furnish them earlier than it did, it would not be liable for damages resulting from the delay.</p> <p>3. —Same—Expenses Incurred Through Delay Must Be Shown Reasonable. -</p> <p>It was error for the court to charge that plaintiff could recover whatever expenses the jury should find he incurred for pasturage and feed for his cattle caused by the delay in furnishing cars without any qualification that the expenses so incurred must have been reasonably necessary.</p> <p>4. —Same—Remittitur.</p> <p>Such error in the charge could be cured by remittitur of the amount of such expenses as claimed in plaintiff’s petition.</p>

<p>Appeal from the District Court of Lamar. Tried below before Hon. Ben. H. Denton.</p>

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

<p>1. —Limitations—Lex Loci—Personal Injury.</p> <p>Where a citizen of Louisiana brought- suit in a Texas court against a. railroad corporation chartered in Missouri and operating in Louisiana for personal injury occurring in Louisiana, whose statutes created the right to-bring such suit and not only made the right unenforcible after a prescribed period, but totally extinguished and discharged it, the lex loci would govern. Such suit could not be maintained here where it was brought after the time prescribed by the Louisiana statute.</p> <p>2. —Same.</p> <p>The fact that the defendant corporation was not domiciled in Louisiana, did not alter the case.</p>

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

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

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

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

<p>1. —Personal Injury—Negligence—Discovered Peril.</p> <p>Evidence considered and held to support judgment for personal injuries by being struck by a street railway car, where the motorman discovered plaintiffs peril but did not use ordinary care to stop the car in time to prevent injury, though plaintiff may have been guilty of negligence in going •upon the tracks in front of the car.</p> <p>2. —Same—Deafness.</p> <p>Though a motorman did not know of plaintiff’s deafness he should have used ordinary care to prevent injury by checking the car when he saw that plaintiff took no heed of his warnings.</p>

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

<p>1. —H omestead—Abandonment—Mortgage.</p> <p>So long aa lots are actually used and occupied as a homestead a* mortgage given on such lots is null and void, even though it was the intention, at the time of the execution of the mortgage, of the parties so occupying to abandon it.</p> <p>2. —Same—Pleading.</p> <p>An allegation that defendants had abandoned the mortgaged property now claimed to be homestead at the time the note and mortgage on which foreclosure was sought were executed refers to the time the instruments were dated and alleged in the petition to be executed, and does not put in issue a claim that they were executed at a subsequent time, and that their homestead rights hadT then been abandoned.</p>

<p>1. —Judgment Non Obstante Veredicto.</p> <p>The court has no right to enter a judgment non obstante veredicto in favor of a plaintiff against a defendant who has obtained a favorable verdict, upon a verdict rendered against his codefendant. Questioned whether, in this State, the trial court can enter a judgment non obstante veredicto in any case.</p> <p>2. —Guaranty Companies—Refusal to Act as Surety—Penalty.</p> <p>The law providing that guaranty companies shall be liable to a five hundred dollar penalty in case they fail to give, upon request of the person for whom they have .refused any longer to be surety, a written statement showing the reason for their action (Acts of 1897, chap. 165, see. 10), applies alone to guaranty companies and can not be extended to include other corporations though they be agents for such companies.</p> <p>3. —Same—Recovery of Penalty.</p> <p>The penalty denounced by section 9 of chapter 165 of the Acts of 1897, against one accepting as surety a guaranty company which has not obtained authority to do business in the State, can only be recovered by a suit in the name of the State.</p> <p>4. —Guaranty Company—Agent.</p> <p>Section 8 of chapter 165, Acts of 1897, does not, by making the person soliciting business for a guaranty company the agent of that company, make him liable for the company’s acts, nor for acts of his own which would not be actionable if done by the guaranty company.</p> <p>5. —Agent—Penalty.</p> <p>Evidence considered and held not to show defendant, the Pullman Company, as agent of a guaranty company, liable to plaintiff in penalty as provided by section 10, chapter 165, of the Acts of 1897.</p> <p>6. —Statement of Facts—Stenographer’s Notes.</p> <p>Plaintiff can not complain of the refusal of the court to grant his motion to require the stenographer to transcribe his stenographic notes of the testimony taken upon the trial, where a statement of facts was agreed to by attorneys for plaintiff and defendant and approved by the judge.</p>

<p>1. —Master and Servant—Charge—Duty to. Inspect.</p> <p>In the case of a brakeman injured by the handrail on the cupola of the caboose giving way, causing him to fall to the ground, the car passing over his hand, it was not error, as on the weight of evidence, to charge that he had a right to assume that the handrail was in a reasonably safe condition and was not required to inspect the same; if defendant desired the issue raised as to whether the general condition of the car was such as tti charge plaintiff with the particular defect causing his injury, he should have requested a charge submitting such issue.</p> <p>2. —Same—Contributory Negligence—Question of Fact.</p> <p>The question of contributory negligence is one of fact for the jury and the court properly refused a peremptory instruction that appellant was guilty of negligence, as a matter of law, in attempting to leave the top of the caboose while the car was in motion.</p>

<p>1. —Statute Construed—Divorce—Residence.</p> <p>Revised Statutes, article 2978, providing for six months residence next preceding the filing of suit for divorce in the county in which such suit is filed, construed, and the word “reside” held to mean an actual residence _as distinguished from a legal or constructive one. Haymond v. Haymond, 74 Texas, 414, followed.</p> <p>2. —New Cause of Action—Pleading.</p> <p>Where the original petition in a suit for divorce alleged cruel treatment and amendments afterwards set up, in addition, abandonment and adultery, such amendments set up a new cause of action and the residence of the petitioner for the six months next preceding the time of filing the last amendment must govern the question of her right to sue for divorce in the county in which she did.</p>

<p>Guardian—Settlement of Judgment—Estoppel.</p> <p>A receipt given by a newly appointed guardian to the retiring guardian, acknowledging the payment of a judgment recovered against the former guardian, where the suit awarding such judgment is pending on appeal, will not estop the appellants to prosecute the appeal where the appellee confessed his indebtedness in the amount of the judgment, the only question being whether he is indebted in a larger sum. Dunham v. Randall, 11 Texas Civ. App., 265, and Twombly v. Railway Co., 31 S. W. Rep., 81, distinguished.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. Norman G. Kittrell.</p>