Volume 37 — Texas Civil Appeals Reports

<p>1.—Surety—Release.</p> <p>A surety is released by a change in the terms of the original contract by agreement between the principals.</p> <p>- 2.—Principal and Agent—Sale—Surety.</p> <p>Sureties for the performance by their principal of his accounting as agent with reference to sales of property made by him were not liable upon a sale made by him with consent of the plaintiff to himself, acting under the firm name of a company.</p>

<p>1. —Grant—Evidence.</p> <p>Evidence considered and held to support finding that land in controversy was granted by the Spanish government in 1767, though no paper grant was produced.</p> <p>2. —Possession—Deed—Recitals.</p> <p>Recitals in ancient deeds tending to show possession or other acts of ownership prior to their dates, may be considered as evidence of such facts.</p>

<p>1.—Breach of Contract—Liquidated Damages—Penalty.</p> <p>Where a contract provides for the payment of a certain sum as liquidated damages in the event of the nonperformance of a specific act which may produce damages of an uncertain character, and no language is used indicating that such damages shall be considered only as a penalty, and if the sum named bears such proportion to the actual damages that it may reasonably be presumed to have been arrived at by a fair estimation of the parties, such sum is liquidated damages. .</p> <p>2__Same.</p> <p>In consideration of a sum paid by an individual to a street railway company as an inducement to build their line in front of his property and operate it for twenty-five years, half the lifetime of the lease granted the company, it was agreed in a contract that in case operation throughout the entire line or any part should be suspended within that time the company would be liable for the amount donated to secure the line. Held, that such sum named was intended by the parties as liquidated damages and not as a penalty.</p> <p>3. —Contract—Construction.</p> <p>Such contract held to contemplate twenty-five years’ continuous operation from the date of its execution.</p> <p>4. —Charge—Attorney Fees—Harmless Error.</p> <p>Where a contract provided for such reasonable attorney fees as the court may allow in case of suit on the contract, but no evidence was introduced as to what was a reasonable amount, it being agreed, however, by the parties on the trial that a certain amount would be reasonable, a charge requiring the jury to allow 10 percent attorney fees, though erroneous, was harmless where the amount awarded was the sum agreed on by the parties.</p>

<p>Estoppel—Representations Not Acted" Upon.</p> <p>Representations and promises by defendant to an employe of a contractor that his Avages AA'ere all right and defendant would guarantee them if he would continue Avork did not estop it from denying liability to plaintiff who refused to continue the Avork on such assurance.</p>

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

<p>1. —Fire Insurance—Policy—Interest of Mortgagee.</p> <p>The insertion in a fire policy of a mortgage clause making the loss payable to the mortgagee does not constitute such privity of contract between the insurance company and the mortgagee as that the latter would not be precluded from a recovery upon the policy by an act of the mortgagor, such as setting fire to the property, in no way participated in by such mortgagee, unless there be a further stipulation specially exempting him and those claiming under him from the effect of the acts or defaults of the mortgagor.</p> <p>2. —Same—Proofs of loss.</p> <p>Since it is not necessary, in case of a total destruction of the property that any proofs of loss should be furnished, it is immaterial that in such a case the proofs were furnished by the mortgagee instead of the insured.</p> <p>3. —Same—Unconditional Ownership.</p> <p>One to whom real estate has been sold and conveyed by bond for title, the vendor taking notes secured by vendor’s lien for the purchase money, and such purchaser being placed in possession, is the sole and unconditional owner of the property within the terms of a fire insurance policy.</p>

<p>Appeal from the County Court of Delta. Tried below before Hon. J. F. Holmes.</p>

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

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

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

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

<p>1. —Joint Wrongdoers—Accord and Satisfaction With One.</p> <p>One receiving personal injury by the concurring negligence of several persons may accept a payment from one and guarantee him against further liability upon the claim without releasing the other joint wrongdoers from liability.</p> <p>2. —Same—Fact Case.</p> <p>Plaintiff having received personal injuries through the alleged negligence of his employer, a contractor, and that of two railway companies, accepted from one of such companies the sum of $1,000, guaranteeing to protect it from further liability, but stipulating that the contract of settlement did not release the company making such payment or either of its codefendants from liability for the wrongs complained of; held that he was not precluded by such settlement from recovering judgment against another of the joint wrongdoers, the amount paid by its codefendants being allowed as a credit on plaintiff’s claim against the one so held liable.</p> <p>3. —Joint Wrongdoers—Indemnity and Contribution.</p> <p>One of several active joint wrongdoers is not entitled to an action for indemnity or contribution against the other joint tort feasor.</p> <p>4. —Joint Wrongdoers—Charge.</p> <p>Instruction held to properly present the joint liability of defendants whose concurring negligence had caused injury to plaintiff,</p> <p>5. —Argument of Counsel.</p> <p>Improper argument of counsel held no ground for reversal where properly cured by the action of the trial court.</p> <p>6. —Concurring Negligence—Charge—Burden of Proof.</p> <p>Instruction in regard to the burden of proof resting on plaintiff in an action for injury by the concurring negligence of two or more defendants, held correct.</p>

Tried below before Hon. Sam B. Scott. The third assignment of error was as follows: “The court erred in overruling defendant’s ninth special exception to plaintiff’s petition, to the efféct that the contracts sued upon appear upon their faces to be ex parte promises on the part of defendants only, and not the binding mutual contracts contemplated by the mechanic’s lien statute; wherefore the plaintiffs acquired no lien upon the homestead of the defendants by reason of such…

<p>Appeal from the District Court of Tom Green. Tried below before Hon. J. W. Timmins.</p>

<p>1. —Carrier of Passengers—Negligence.</p> <p>An instruction that failure of a railroad company to provide the window sashes on its car with reasonably safe fastenings was negligence held erroneous.</p> <p>2. —Same—Degree of Care.</p> <p>A charge holding carriers of passengers bound to use the highest degree of care in transporting them which a person of the highest degree of care and prudence would use under like circumstances was objectionable in emphasizing the degree of care required if not as requiring a higher degree of care than does the law; but is not made ground for reversal.</p>

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

<p>1. —Action of Debt—Judgment by Default—Citation.</p> <p>The fact that a citation served on a defendant did not bear the seal of the court, but was in all other respects good, while it would be ground for quashing the citation or reversal on appeal or writ of error of a judgment rendered by default for nonappearance, does not, however, render the proceedings in which the judgment was obtained void, and the omission of the seal is not a defense to an action of debt brought on such judgment.</p> <p>2. —Same—Judgment—C ollateral Attack.</p> <p>That a judgment is void because the citation served in the proceedings in which it was obtained did not bear the seal of the court is a collateral attack and not available as a defense to an action of debt brought on such judgment.</p>

<p>1.—Practice on Appeal—Issues of Fact.</p> <p>The province of an appellate court in considering evidence upon issues of fact extends only to a determination of its sufficiency to support the findings of the jury, and if this is decided in the affirmative the verdict must be sustained even though, if left in the first instance to an appellate .tribunal, it plight have reached different conclusions of fact from the evidence,</p> <p>2. —Carriers of Passengers—Degree of Care—Negligence—Charge.</p> <p>A charge instructing that it was the duty of defendant, a carrier of passengers for hire, to use such high degree of care in the protection of its passengers as would be used by very competent and prudent persons under like circumstances, though it is not to be considered as an insurer of their safety, held applicable to the pleadings and evidence in the case of a passenger injured by the sudden starting of an electric car as she was in the act of alighting therefrom.</p> <p>3. —Assignment of Error—Propositions.</p> <p>A proposition which presents a distinct question arising from the action of the court upon a matter having no connection with that complained of in the assignment can not be considered.</p> <p>4. —Charge.</p> <p>Where the charge covers every material issue raised by the pleading and evidence, the failure in the preliminary part to fully state the issues is not ground for reversal, no special instruction for the correction of such omission having been requested.</p> <p>On Motion for Rehearing.</p> <p>5. —Assignment of Error—Record.</p> <p>Assignments of error which do not appear in the record and which are not copied into the brief of plaintiff in error can not be considered.</p> <p>6. —Requested Charge too General.</p> <p>Where certain facts were pleaded upon which plaintiff relied to recover for injuries received in- alighting from defendant’s car, and contributory negli: gence set up as a defense, and evidence introduced by each party in support of its pleading, a requested charge instructing a verdict for defendant unless its servants “did or failed to do something under the circumstances which would not have been done or left undone by a very cautious and careful person,” Was properly refused as too general and foreign to the case.</p> <p>7. —Same—Issue Suggested.</p> <p>A complaint that the court should have submitted an issue suggested by a requested charge, although the charge itself was erroneous, should be made by a separate assignment of error.</p> <p>8. —Charge—Stating Issue.</p> <p>An objection that defendant was prejudiced before the jury by the action of the court in stating at length the allegations in plaintiff’s petition and in stating only in a general way the answer of defendant, can not be urged where no special charge stating more fully the defensive matter was requested.</p> <p>9. —Allegation and Proof—Substance of Issue.</p> <p>The substance of an issue is all the law requires to be proven.</p> <p>10. —Charge—Favorable to Complainant—Contributory Negligence.</p> <p>Defendant is not entitled to complain of the refusal of a requested charge where the general charge instructed a verdict for defendant if plaintiff at-, tempted to alight from the car while it was moving and in so doing was thrown to the ground and injured, since this was more favorable than the requested charge in that it made the facts therein submitted negligence per se on the part of plaintiff, when this question should have been, and in the requested charge was, left to the determination of the jury.</p>

<p>Forged Check—Liability of Bank.</p> <p>As between a depositor and a bank the latter is held to a knowledge of the signature and handwriting of its customers, and in the absence of some fault on the part of the customer affecting the question of liability, a forged check, whether the forgery was accomplished by material alteration or imitation of the signature, is honored by the bank at, its peril.</p>

<p>1.—Residence—Domicile.</p> <p>One may have a domicile and residence in one state and also a residence in another.</p> <p>2.—Same—What Constitutes.</p> <p>The fact that a person accepted a position, the duties of which fixed his headquarters at a certain city is sufficient to constitute de facto residence without proof that he owned a home or other property at that point, regardless of the length of time he lived there.</p> <p>3.—Same—Nonresident—Action for Personal Injuries—Venue.</p> <p>Where a person who claimed a city in another state as his home, but accepted a position in this state the duties of which fixed his headquarters in a certain city where he ate and slept and had his washing done, his employment being for an indefinite period so long as it suited him or he gave satisfaction, his residence in such city was thereby fixed so that a suit by him against a railway for personal injuries must be brought in the county of his residence or in the county where the injury was received.</p>

<p>1. —Killing Live Stock—Charge on Weight of Evidence.</p> <p>In an action for the value of live stock killed on defendant’s right of way at a point where a public road ran parallel with the railway track between fences on either side of the track it was error, as being on the weight of evidence, for the court to charge that plaintiff had the right to drive his stock-on and along the public road and to camp thereon at night, but it was his duty in so doing to exercise such care to prevent the stock from getting upon defendant’s track as a person of ordinary prudence would have, exercised under the same circumstances, such charge not being responsive to any issue in the case and bearing only on the question of contributory negligence on plaintiff’s part in not camping at some point more distant from the track.</p> <p>2. —Same—Contributory Negligence.</p> <p>The statute fixing the liability of railway companies for the killing of live stock by their trains does not, it seems, preclude the defense of contributory negligence where the owner of the stock camps them for the night beside the unfenced right of way when a safer place for camping was available.</p>

<p>Appeal—Pauper’s Proof in Lieu of Bond—Approval in Term Time.</p> <p>Where appellant, in lieu of an appeal bond, made proof before the trial judge of his inability to give bond, and the judge’s certificate recited that plaintiff (appellant), by presenting his affidavit of such inability “within term time,” has made the necessary proof, etc., and the date of such certificate was within the term- of the court, this was sufficient to show that the court was actually 'in session at the time the order was made, there being nothing in the record to show that it was not so in session.</p>

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

<p>1. —Removal of Causes—Dismissal—New Suit.</p> <p>A plaintiff whose cause has been removed by defendant into the Federal Court has a right -to dismiss it there and bring suit again in the state 'court for less than $2,000.</p> <p>2. —Continuance—Diligence.</p> <p>An application for first continuance must state that the plaintiff used due diligence to procure the testimony of the absent witnesses.</p> <p>3. —Pleadings—Damages—Bill of Particulars.</p> <p>In an action for damages by delay in transportation of fruit trees, it was unnecessary, as against special exception, to give the particulars of the contents of such shipment, where the damages sought were claimed by plaintiff not by reason of depreciation in the market value of the stock, but by reason of loss of a sale at agreed price. Key, J., dissenting.</p> <p>4. —Carrier—Damages not Remote.</p> <p>The expense of renotifying and making delivery to purchasers of property shipped for delivery on a, certain day in accordance with previous arrangement of which the carrier had notice, may be recovered as an element of the shipper’s damages.</p> <p>5. —Express Company—Agent—Authorizing to Contract.</p> <p>A contract by an express company’s agent for transportation of goods on a certain day and train is within the scope of his agency and affirmative authority so to contract need not be proved.</p> <p>6. —Same—Driver of Delivery Wagon.</p> <p>It was error to charge that an express company was bound by a contract for transportation of property for a shipper on a given day and train made by the driver of its delivery wagon, in the absence of evidence of his authority so to contract.</p>

<p>1.—lunatic—Guardian—Residence—Jurisdiction.</p> <p>A married woman having been adjudged insane in the county where she then resided and confined in the state asylum, her.-husband afterwards removed to and acquired community property in another county. Held, that the County Court of the latter county had jurisdiction to appoint a guardian of her estate.</p> <p>5$.—Community Property—Insanity of Wife.</p> <p>Article 2220 of the Revised Statutes does not, upon the wife becoming insane, transfer to the husband the title to her portion of the community property nor affect its descent and distribution as prescribed by other statutes.</p> <p>3.—Same—Will.</p> <p>Where the wife had been adjudged insane, the husband who had not disposed of the community property during his-lifetime could not dispose of her interest in it by will.</p>

<p>1.—Bills of Exception—Affidavits—Record.</p> <p>Affidavits relating to the action of the judge upon bills of exception of appellant are unauthorized, constitute no part of the record, and should not be included in it.</p> <p>2.—Disclaimer—Costs.</p> <p>One who disclaims any interest in land sued for is not liable for costs incurred after the filing of such disclaimer.</p>

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

<p>1. —Married Woman—Deed—Acknowledgment.</p> <p>A declaration in an acknowledgment of a deed by a married woman that she consented that the instrument be recorded was equivalent to a statement that she did not wish to retract it.</p> <p>2. —lost Instrument—Transcript from Court Records—Secondary Evidence.</p> <p>Where in trespass to try title the evidence shows the loss and proper legal search for an original deed of trust, upon which defendant’s testimony depends, a transcript from the records of the Supreme Court of the District of Columbia, to which was attached a copy of the lost deed, was admissible as secondary evidence tending to establish the deed.</p> <p>3. —Same—Burned Records—Recital in Abstract—Notice.</p> <p>Where plaintiff in trespass to try title, before he bought the land in controversy, examined the abstract of title which showed two deeds reciting all the conveyances down to the defendant but did not show one conveyance by a former owner so recited, such recital in the deed shown by the abstract was notice sufficient to require of plaintiff further inquiry than merely an examination of the county records of deeds, the records having been twice burned and the residences of defendant and his grantor being set out in the abstract.</p> <p>4. —Deed—Recital.</p> <p>A recital in a deed that the land was conveyed by A. to S. and then to G. was not a recital of two conveyances by the same grantor, but the reasonable inference would be that the last grantee conveyed to the next.</p>

<p>1.—Trial by Court—Erroneous Admission of Evidence.</p> <p>The rule that the erroneous admission of evidence will not require the judgment to be reversed where the case was tried by the court and there was ample evidence outside of that objected to, to warrant the judgment, does not apply where the bill of exceptions taken to the admission of the incompetent but material evidence shows that it was both admitted and considered by the court.</p> <p>2.—Illegal Practice of Medicine—Recovery Back of Money Paid.</p> <p>In an action to recover for medical services rendered, the defense that plaintiff was not authorized to practice medicine because he had not complied with the statute on the subject would not also authorize a recovery back by defendant of money already paid to plaintiff, but such recovery back would be authorized if defendant showed that plaintiff in any way represented himself to be a practicing physician when he was not authorized to practice, and defendant was thereby induced to employ and pay him for professional services.</p>

<p>1.—Garnishment—Negotiable Note Not Due.</p> <p>It is the general rule that the maker of a negotiable promissory note, while it is current and not yet due, can not be held liable as garnishee at the suit of a creditor of the payee of such note, and this because of the negotiability by law of such paper, and the liability of the garnishee to the holder of the note, whether he be known or not.</p> <p>2.—Same—Exception to the Rule.</p> <p>The rule does not apply, however, where at the time of the garnishment the note is for any reason not current or negotiable, as where it has been placed by the owner in the hands of the maker, to be delivered to a third person by the maker, acting as the owner’s agent, upon payment being made therefor by such ■ third person in accordance with an agreement with the owner.</p> <p>3. —Same—Executory Contract of Sale.</p> <p>Such contract for the sale of the note to such third person being executory, and neither the title to the note nor the owner’s right to the possession thereof having passed, will not serve to defeat the garnishment, since such third person, not having tendered the purchase money for the note prior to the service of the garnishment, has no right to a specific performance of the agreement.</p> <p>4. —Same—Protection of Garnishee.</p> <p>The garnishee, having the note executed by himself in his possession at the time of the garnishment, is in a position to protect himself against a transfer of the note to a third person without notice, and it is his duty to do so.</p>

<p>1. —Carrier of Passengers—negligence—Willful Act of Fellow Passenger.</p> <p>Where a passenger receives an injury through the willful act of a fellow passenger, the carrier is liable only when, by the exercise of the requisite high degree of care, such act, in view of all the circumstances, might have been reasonably anticipated or foreseen and prevented.</p> <p>2. —Same—Unforeseen Act of Drunken Passenger.</p> <p>Plaintiff’s wife was injured by reason of a collision brought about by the act of a drunken passenger in purposely uncoupling the car in which she was riding from the other part of the train. The passenger had been on the train but a short time, was not boisterous, and prior to the uncoupling had done nothing that indicated his drunken condition. The conductor had not reached him in taking up tickets, and no employe of the company had observed him, the brakeman being in another car looking after the fires. Held, that a recovery against the railway company was not authorized by the facts.</p>

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

<p>Carrier—Injury to Property—Damages.</p> <p>fact that property was damaged during transportation and through the negligence of the carrier, does not entitle the owner to refuse to receive it and hold the carrier for its entire value.</p>

<p>Sale—Offer—Acceptance—Pleading.</p> <p>A contract made by letters between the owner of Texas land living in Kentucky and a proposed purchaser in Texas, consisting of an offer and acceptance at a fixed price, held to require payment or tender of the price by the_ purchaser to the seller in Kentucky; and a petition showing no offer or will-' ingness to pay at such place held to disclose no cause of action for enforcing specific performance of the contract.</p>

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

<p>1.—Appeal Bond.</p> <p>A bond on appeal from justice court which sufficiently, and in other respects correctly, describes the judgment appealed from, is not invalid for the reason that it describes a judgment defendant, not appealing, as “Star Piano” instead of “Star Piano Company,” and it was error to dismiss the appeal because of such variance.</p> <p>Z.—Same—Bond to Codefendant.</p> <p>One of two defendants against whom judgment was recovered in justice court, could appeal without making the bond payable to its endefendant.</p>

<p>1. —Breach of Warranty—Special Purpose—Measures of Damages.</p> <p>Ordinarily the measure of damages for a breach of warranty is the difference between the actual value and the agreed value of the article, with interest; but where the parties at the time of the making of the contract had in contemplation some special end or purpose for which the article was warranted to be fit, and if the buyer, in endeavoring to apply the article to the purpose for which it was warranted as suitable, sustains naturally and proximatcly some loss incidental to such application, compensation for such loss may be included.</p> <p>2. —Same—Measure of Damages.</p> <p>A butcher who purchased a refrigerator, warranted to be delivered in good condition and not to leak, could recover the value of meat lost by a failure of the warranty, if the refrigerator in the condition as warranted would have preserved the meat, provided he did not know or by the exercise of ordinary prudence could not have knovn that meat placed in the refrigerator in the condition in which it was would probably spoil.</p> <p>3. —Suit for Purchase Price—Breach of Warranty—Burden of Proof.</p> <p>Where the only defense to a suit for the purchase price of an article is the breach of an express warranty, the burden of proving such warranty and breach is on defendant and the court should so charge.</p> <p>4. —Breach of Warranty—Part Payment of Purchase Price—Resale—Estoppel.</p> <p>The fact that a buyer paid part of the purchase price of an article after breach of the warranty as to the condition in which it should be delivered, or the fact that he sold it to another for an increased price, does not estop him to recover damages flowing from the breach.</p> <p>5. —Same—Measure of Damages.</p> <p>Where damages for the loss of meat, through a breach of warranty as to the condition in which a refrigerator should be delivered, are sought in re-convention to an action for the purchase price, the quantity of the meat lost should be shown to a reasonable certainty and also its market value at the time it was lost.</p>

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

<p>Appeal from the District Court of Bee. Tried below before Hon. H James C. Wilson. 1</p>

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

<p>1. —Charge—Harmless Error.</p> <p>Where, in an action for personal injury the evidence as to defendant’s negligence resulting in the injury was conclusive, there being no attempt to rebut the case made, it was not prejudicial error for the court’s charge to instruct that liability was not denied, although defendant had pleaded the genera] denial.</p> <p>2. —New Trial—Cumulative Evidence.</p> <p>A motion for new trial, sought on the ground of newly discovered evidence, is properly refused where such evidence is shown by the motion itself to be merely cumulative.</p>

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

<p>1. —Carriers of Freight—Cattle Shipment—Delay.</p> <p>The duty of a railway company to furnish immediate transportation for cattle delivered to it for shipment by a connecting line is not an absolute one, and in an action for injury to the cattle resulting from delay it is entitled to show that the cattle were sent forward by the first freight train leaving after they were delivered to it, and as soon as its road was clear and open to such train.</p> <p>2. —Same—Expert Evidence.</p> <p>In such action it was competent for the defendant company to prove by a freight conductor of twenty-five years’ experience, accustomed to making up and handling trains of cattle, that at -the point where the cattle were delivered to defendant by a connecting line a delay of two hours thereafter in making up trains, getting orders and clear track for moving the cattle, was not an unnecessary or an unreasonable delay.</p>

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

<p>Appeal from the County Court of Harrison. Tried below before Hon. H. T. Lyttleton.</p>

<p>1. —Master and Servant—Assumed' Risk—Defective Appliances.</p> <p>A servant assumes the risks ordinarily incident to his employment and such as arise from open and obvious imperfections of things about which he is employed.</p> <p>2. —Same—Obvious Danger.</p> <p>Plaintiff was employed in a laundry, and" her hand was injured by being drawn between the rollers of a cuff ironer. She did not allege in her petition that the danger was not an open and obvious one, but did aver that “there was more deceptive danger to persons handling said machine than would be apparent to one of ordinary observation, because of the rotary motion of the rollers of the same having a tendency to draw objects which came in contact therewith, and that the apparent or perceptible danger she assumed, if any, was because she believed and supposed defendants had as good and safe machinery as was obtainable by reasonable diligence.” Held, not sufficient to show that the danger was not open and obvious, since she must have known of the tendency of rollers revolving in the same direction to draw objects coming in contact therewith, and it was not alleged that she was inexperienced in the work she was then doing.</p> <p>3. —Same.</p> <p>The fact that had a fender been provided the machine would have been safer, did not relieve plaintiff from such dangers as were obvious and apparent to her in working about a machine not so provided.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. Richard Morgan.</p>

<p>1.—Surety by Deed of Trust—Novation of Debt—Release.</p> <p>Defendant, joined by his mother, executed to plaintiffs a deed of trust upon a tract of land in which the mother owned a half interest, to secure payment of such sums as might become due to plaintiff by defendant for goods sold to him during the ensuing years of 1900 and 1901. In January, 1902, defendant, without the knowledge and consent of his mother, closed his account with plaintiffs by executing to them his note for a balance due them, the note bearing 10 percent interest, with stipulation for attorney fees, and giving a small extension of time. Plaintiffs sued upon this note, asking foreclosure of the deed of trust. Held, that such novation of the debt, imposing conditions-more onerous than the original contract, operated to release from the deed of trust the interest of the mother, which stood as surety for defendant’s debt.</p> <p>2.—Same—Security for Open Account—Recitals Construed.</p> <p>A recital in the deed of trust that it was executed to secure plaintiffs for any advances they might make to defendant upon open account or accounts as lie, defendant, “may contract with them, as shown by their books,” did not authorize a contract by note, nor was such contract impliedly authorized by the " deed, of trust when considered with reference to well known commercial usages and the purpose for which it was made.</p> <p>3.—Same—Suit on Note—Novation—Judgment on Account—Pleading.</p> <p>Plaintiffs having sued upon the note, and not upon the account either directly or in the alternative, were not entitled to judgment on the account with foreclosure of the deed of trust as against the interest of the mother which stood as surety for the account.</p>

<p>1. —Affidavit by Telephone.</p> <p>Affidavit required in judicial proceedings must be made by one personally appearing before the officer attesting it, and can not be sworn to over the telephone.</p> <p>2. —Same—Continuance.</p> <p>An application for continuance on account of the absence of a witness which purported to be sworn to by a party to the suit who, being sick and unable to attend, was called to the telephone by the clerk and made affidavit to the statements as read to him and authorized his attorney to sign his name, was not legally verified and was properly refused.</p>

<p>1. —Railroad—Injury to Child Playing on Cars—Negligence.</p> <p>Where children habitually played in and about a switchyard and the cars left standing therein, with the knowledge and acquiescence of the employes of the railway company, and a child was thrown to the ground and run over by reason of a ear being run with unusual speed against a string of cars upon one of which the child had climbed, and it appeared that the switch crew was one man short and that no care was exercised to discover the presence of the children about and on the cars, there was such negligence as rendered the company liable for the injury. Following Ollis v. Railway, 31 Texas Civ. App., 601.</p> <p>2. —Assignment of Error—Multifariousness.</p> <p>An assignment of error will be disregarded which is multifarious and fails to specify only a single ground or ruling, as required by the statute.</p> <p>3. —Continuance—Absent Witness.</p> <p>It was not error to refuse a continuance to obtain the testimony of a witness where the matters to which the witness would testify were shown by other witnesses and could not in any event have affected the result.</p> <p>4. —Railroads—Negligence in Moving Cars—Substance of Issue.</p> <p>Where plaintiff alleged that defendant’s employes, in making a flying switch, ran moving cars against the one on which he was when injured, evidence merely that the running cars were run against the other one, without showing the manner in which it was done, was sufficient to sustain a recovery, the substance of the issue as to negligence in moving the ears having been proved.</p>

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

<p>Suit on Account—Contract by Letters—Purchase Price—Evidence.</p> <p>In a suit on account for the purchase price of an article, the sale of which was contracted for in writing by an interchange of letters, the terms of the letters, being plain and unmistakable, must control as to the contract price, and what defendant may have thought is no defense.</p>

<p>1. —Ejectment—Pleading—Damages.</p> <p>A petition setting up actual damages for plaintiff’s wrongful ejectment from a hotel, in the sum of $71 paid in advance for a room therein, and exemplary damages for the humiliation and injury to plaintiff’s feelings and reputation resulting from the ejectment in the presence of other guests in a sum sufficient to bring the action within the jurisdiction of the County Court, was not subject to general demurrer.</p> <p>2. —Same—Damages.</p> <p>Humiliation, loss of standing and loss of credit resulting from such ejectment in the presence of other guests are not elements of actual damages.</p>

<p>Check—Duplicate—Liability of Indorser—Laches—Presentment.</p> <p>The indorsement of a duplicate cheek creates no new liability on the part of the indorser different from the original, and having been discharged from liability on the original by loches as to presentment he can not be held on the duplicate.</p>

<p>Sale of Land—Power of Attorney—Execution and Loss.</p> <p>Evidence held to establish the execution and loss of a power of attorney authorizing the sale of land involved in an action of trespass to try title, upon which plaintiff’s title depends.</p>

<p>1.—Statement of Facts—Time of Filing.</p> <p>An agreement to extend the time for filing a statement of facts beyond (hat allowed by law, if same could be extended by agreement, did not authorize the approval of the statement of facts after the transcript had been prepared and filed in the appellate court.</p> <p>2.—Statement of Facts—Approval.</p> <p>The mere signing of a statement of facts by the judge without indicating whether or not he approves it does not constitute an approval by the judge.</p> <p>3.—Statement of Facts—Error.</p> <p>Errors alleged to arise upon certain facts shown by the testimony can not be considered when the statement of facts has been struck out.</p>

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

<p>Error from the District Court of Lee. Tried below before Hon. Ed. B. Sinks.</p>

<p>1. —Master and Servant—Assuming Risk—Direction of Master.</p> <p>Though the servant may ordinarily rely on the direction of a superior in the belief that the master will not negligently expose him to danger, yet, if he knows of such negligence and the danger to which it exposes him, he assumes the risk of the situation when he exposes himself to danger in obedience to orders.</p> <p>2. —Same—Charge.</p> <p>Charges considered in case of employe injured by going, in obedience to orders of the foreman, under a wrecked car which was raised by jacks to be replaced on the track and which fell on and injured him, held erroneous in that defendant’s right to verdict on account of plaintiff’s assumption of the risk is made to depend on absence of negligence on the part of the foreman.</p> <p>3. —Same—Care Required of Servant.</p> <p>The servant was not required to anticipate negligence of the foreman or to look or listen to ascertain whether the latter was doing an act which would expose him, the servant, to danger in a position of peril which he had assumed at the foreman’s instruction.</p>

<p>1.—Contributory Negligence—Assumed Bisk.</p> <p>Evidence considered and held to show that the loss of plaintiff’s eye was due to his own contributory negligence and risk assumed by him in continuing to use a dull chisel in chipping off and squaring the corners of a piece of cast iron, knowing that it did not work well after becoming dull and required stronger blows from the hammer.</p> <p>i.—Master and Servant—Duty to Warn Servant of Danger.</p> <p>It appearing from the testimony that plaintiff had quit work when the chisels he was using became dull and reported that fact to the foreman and was told by him to have them sharpened, no charge submitting defendant’s duty to warn plaintiff of the danger of working with a dull chisel was called for.</p> <p>3.—Natural Laws—Notice.</p> <p>A person of mature years and ordinary sense must take notice of the result of natural laws upon conditions known and obvious to him, and especially upon those of his own producing.</p>

<p>Appeal from the County Court of Bexar. Tried below before Hon. Robert B. Green.'</p>

<p>1.—Bailway—Duty to Keep lookout.</p> <p>The duty of the employes of a railway is not to keep a reasonable lookout to discover person on the track, but to exercise ordinary care, under all the circumstances existing, with reference to keeping a lookout.</p> <p>2.—Same—Same—Charge.</p> <p>In a charge instructing a verdict in favor of plaintiff if the railway failed to exercise ordinary care to discover a child on its track in time to have stopped the train, the added clause “and you further believe that such failure to keep a reasonable lookout, if any, was due to negligence on the part of defendant’s said employes,” was not likely to lead the jury to believe, under the circumstances of this ease, that negligence meant anything more than a failure to use ordinary care. -</p> <p>3.—Misconduct of Jury—Viewing Scene of Accident—Failure to Object.</p> <p>In a suit against a railway for killing plaintiff’s child, plaintiff is in no position to complain of the action of the jury in visiting the railway track at a point somewhat similar to that where the accident occurred and making observations and measurements, where he knew of such action at the time but failed to object and took his chances on a verdict in his favor.</p>

<p>Principal and Agent—Subagent.</p> <p>Where the agent, having undertaken the performance of some duty to his principal, employs upon his own account a servant or subagent to assist him, the subagent must look to his immediate employer, the agent, and not the principal.</p>

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

<p>Appeal from the County Court of Hamilton. Tried below before Hon. J. W. Warren.</p>

<p>1. —Location—Survey.</p> <p>Where entry and application for survey upon various certificates were made in one written application designating the specific land sought to be appropriated under each, the fact that the survey thereunder located the land covered by each certificate upon land designated in the location, not for that, but for another certificate, was a mere irregularity which did not prevent the location and survey from operating as an appropriation of the land as against a subsequent locator.</p> <p>2. —Same.</p> <p>The fact that a survey was made upon land different from that designated in the application or that designated for other certificates located by the same application, was also a mere irregularity, it being within the power of the locator to adopt and ratify the change of location made by the surveyor.</p> <p>3. —Same—School Land—Contiguous Surveys.</p> <p>The fact that the two surveys, for the locator and the school fund, made under a railroad grant certificate, were not contiguous, was a mere irregularity, of which only the state could take advantage. ,</p> <p>4. —Location—Duplicate and Original Certificates.</p> <p>When duplicate certificates had been procured and located, on affidavit of loss of the originals, which being afterwards found were located elsewhere, the owner could abandon the location upon the duplicates and ask patent on the original certificates as located, especially where the duplicates were found to be located on lands previously appropriated.</p> <p>5. —School Land—Designation by Commissioner.</p> <p>The fact that in the location of railway land grant certificates the commissioner did not personally select and designate the even and odd sections, in order to designate those belonging to the locator and the school fund respectively, but, by the custom of his office the draughtsman adopted the numbering thereof shown in the surveyor’s return, did not prevent the numbering so made from operating as a designation of the even numbered sections as belonging to the school fund.</p> <p>6. —Constitution—Return of Field Notes—Computation of Time.</p> <p>The constitution going into effect on April 18, 1876 (Rev. Stats., arts. 3880-3882), the time of five years'from its adoption allowed for returning certificates and surveys to the General Land Office is to be computed as excluding that day, and their return on April 18, 1881, was in due time.</p> <p>7. —School Land—Location—Validating Act.</p> <p>The Act of February 3, 1883, declaring lands theretofore surveyed for the school fund, upon certificates valid or invalid, to belong to that fund cured irregularities in the surveys and returns as well as in the certificates themselves.</p> <p>8. —School Land—Appropriation—Compensation for by State.</p> <p>The fact that lands once lawfully appropriated to the school fund were, in the adjustment of claims between the state and the school fund under the Acts of March 3, 1899, and February 23, 1900, by mistake of the commissioner, not charged to the school fund, but that fund compensated for them as having been granted by the State to private locators, and did not have the effect of taking such- lands out of the school fund.</p> <p>9. —School Land—Patent.</p> <p>Patents issued to locators of veteran certificates for land previously surveyed for and appropriated to the school fund gave the patentees no superior right to the land and could be canceled at suit of the State.</p>

<p>1. —Pleading—Fraudulent Representations.</p> <p>Allegations of fraudulent representations by defendant held not to constitute mere expressions of opinion but to amount to a statement of facts.</p> <p>2. —Fraud—Receipt of Property.</p> <p>One induced to purchase property by fraudulent representations by the vendor and paying freight charges thereon was not required, in order to rescind the trade, to surrender the property until the freight charges had been returned him.</p> <p>3. —Fraud—Limitation—Written . Contract.</p> <p>Where the right of plaintiffs to recover damages for fraudulent representations on sale of goods depended upon their right to avoid the terms of a written contract because of such fraud, the four years statute of limitation and not the two years applied to their contract.</p> <p>4. —Sale—False Representations—Knowledge by Purchaser.</p> <p>Evidence considered and held to require the submission of the question whether plaintiff, suing on account of false representations in a sale, was not precluded from recovery by reason of his knowledge, at the time, that the representations were untrue.</p> <p>5. —False Representations—Expression of Opinion.</p> <p>A representation by the agent of the seller of machinery that it could be run by the power already in operation by the purchaser in the business in which it was to be used, being made by an expert examining the machinery, was a statement of fact and not a mere expression of opinion.</p> <p>6. —Res Adjudicata—Damages—Right to Possession.</p> <p>A former judgment between the parties which, without passing on the question of the right of one to damages, settled the right of his adversary to the possession of certain property after a named date, while not preventing a subsequent suit for the damages, was conclusive, in such suit, of the right to the property from the date fixed in such former judgment.</p>

<p>1. —Gratuitous Bailee—Burden of Proof.</p> <p>The testimony failing to show that defendants, who were sued for failing to deliver property stored with them, were bailees for hire, the burden of proof was upon plaintiff to show a wrongful failure to deliver, and not upon defendants to establish their excuse for nondelivery.</p> <p>2. —Harmless Error.</p> <p>Errors in the charge submitting the issues are not ground for reversal, where, under the undisputed testimony, the parties complaining were not entitled to a verdict.</p> <p>3. —Bailment—Receipt—Transfer of Cotton Ticket.</p> <p>Cotton having been delivered to a bailee who issued tickets therefor containing the name of the bailor and weight of the bale with the stipulation “Transferable only on the books of the yard,” such tickets evidenced a contract restricting the right of assignment by the holder, and the production of the ticket by another party without proof of the transfer of the cotton upon the books was insufficient to establish liability of the bailee to such ticket-holder for failure to deliver the cotton.</p> <p>4. —Contract—Custom.</p> <p>• Custom of a bailee to deliver cotton to the holder of the receipt issued by film to the bailor without transfer by the latter upon the books of the bailee, made necessary to an assignment by the provisions of such receipt, if admissible at all to supersede the stipulation in such contract, must be shown to be uniform in order to be given that effect.</p>

<p>School lands—Cancellation of lease—Evidence—Disposition.</p> <p>That a lease of school lands had been cancelled could not be proved by-deposition of the Commissioner of the General Land Office, the written declaration cancelling the lease given under the hand and seal of the Commissioner which is required to be filed with the other papers in the case being the proper proof.</p>

<p>Appeal from the District Court of Collin. Tried helow before Hon. J. H. Pearson.</p>

<p>1. —Landlord and Tenant—Notice—Subtenant.</p> <p>A subtenant is chargeable with knowledge of the terms of the lease under which the original lessee holds the property, but he is not liable to the owner of the property upon personal covenants contained in such lease, such as an agreement with relation to keeping insurance on the property, unless he has contracted to become so liable.</p> <p>2. —Parties—Proper but not Necessary.</p> <p>It is not reversible error for the court to refuse to permit a person to be made a party to the suit where such person, though a proper party, is not a necessary one.</p> <p>3. —Damages—Insurance—Transfer of Part of Claim.</p> <p>In an action against a railroad company for the value of property destroyed by fire through its negligence, the fact that plaintiff, under a subrogation clause in his policies of insurance on the property, had transferred a part of his cause of action to the insurance companies, would not debar him from a recovery where it appeared that he had an interest over and above that claimed by the insurance companies.</p> <p>4. —Charge—Request for—Refusal.</p> <p>The refusal to give a requested charge is not error where the issue sought to be presented by it is fully and fairly submitted in the main charge.</p>

<p>1. —Injunction—Jurisdiction—Penalties for Disobeying.</p> <p>A writ of injunction issued by a court having no legal power to issue it is void, and the party against whom it is directed has the right to violate it without subjecting himself to any penalty for so doing.</p> <p>2. —Same—Multiplicity of Suits.</p> <p>The District Court has not, under the present Constitution, authority to issue an injunction restraining a party from prosecuting in the County Court a number of suits against the same defendant, the suits being for causes of action similar in character and each for an amount within the jurisdiction of the County Court, and the injunction being sought on the ground that the plaintiff in such suits so brought them for the purpose of vexing and harassing the defendant arid causing him to incur large amounts of costs, since the several claims could have been consolidated and one suit brought therefor in the District Court.</p> <p>3. —Same—Enjoining Court.'</p> <p>An injunction restraining a party from prosecuting certain suits in a court is in effect one which restrains the court from proceeding in the trial of such suits.</p>

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

<p>1.—Evidence—Degree of Certainty.</p> <p>Evidence which only raises a mere surmise or suspicion of the existence of a fact sought to be established falls short of being “any evidence” and can never sustain a verdict.</p> <p>3.—Deed—Misnomer—Evidence.</p> <p>Evidence considered and held insufficient to support a finding that a conveyance by deed of trust to the Odd Fellows Building and Savings Association was in fact a misnomer, the real grantee being the Odd Fellows Building and Exchange Company of Texas, under whom plaintiff claimed as a grantee.</p> <p>3. —Reversal—Best Evidence.</p> <p>Though the evidence adduced upon the main issue was sufficient, when standing alone, to raise the issue, a judgment based upon its decision will be reversed where it is apparent that much more satisfactory evidence was obtainable than that offered on the trial.</p> <p>4. —Secretary of State—Records—Evidence.</p> <p>Testimony of an attorney that he examined the files in the office of the Secretary ,of State and failed to find any record of a certain charter was inadmissible, the testimony of the custodian of such records being the proper evidence of its nonexistence.</p> <p>5. —Issue Not Passed On by Jury.</p> <p>Though the testimony of plaintiff shows such possession of the land in controversy prior to defendant’s entry as would entitle her to recover, defendant having failed to show any title, a judgment in her favor can not be affirmed where she was contradicted by the testimony of defendant and the issue was not passed upon by the jury.</p>

<p>1. —Laborer’s Lien—Foreclosure—Parties.</p> <p>_ In an action to foreclose a laborer’s lien for work done in the construction of a railway the contractor who employed plaintiff is a necessary party to the suit.</p> <p>2. —Nonresident—Service—Personal Judgment.</p> <p>Service by publication may be had on a nonresident in an action to subject property of his within this State to claims against him, but a personal judgment against him can not be predicated on such service.</p> <p>3. —Same—Action to Foreclose Laborer’s Lien.</p> <p>A nonresident contractor who employed plaintiff could not be made a party to an action to foreclose a laborer’s lien for work done in the construetian of a railway by service by publication.</p> <p>4. —Railway Construction—Laborer’s Lien—Subcontractor.</p> <p>Though a subcontractor does not acquire a lien on railway property to secure him for work he does in its construction through the labor of others, he has, however, a lien for work which he personally does.</p>

<p>1.—Note Collateral Security—Negligence of Pledgee.</p> <p>Where the opportunity to collect bills or notes of a third party given as collateral security for a promissory note of the pledgor is lost by negligence of the pledgee, when with ordinary care they might have been enforced, the latter is liable for the full loss and damage to the pledgor.</p> <p>2.—Same—Pledge—Failure to Collect—Charge.</p> <p>A charge upon the liability of a pledgee for negligent failure to collect a note of a third party given as security for a promissory note of the pledgor need not inform the jury when the security note became due.</p>

<p>I.—Insurance Policy—Construction.</p> <p>Where the language used in a policy of insurance is chosen by the insurer and is of doubtful meaning, that construction which is most favorable to the insured is to be placed upon it.</p> <p>2, —Fire Insurance—Forfeiture—Foreclosure Proceedings—Commencement.</p> <p>Where a policy of insurance covering property on which there was a deed of trust contained a stipulation that the policy should become void if with knowledge of insured foreclosure proceedings be commenced before the house is destroyed by lire, without written notice to and consent of the company, by “commencement of foreclosure proceedings” is meant the filing of suit and not service of notice, and the forfeiture did not attach by filing foreclosure suit without procurement or knowledge of insured.</p> <p>3. —Cases Followed, Distinguished and Disapproved.</p> <p>Stenzel v. Insurance Co., 35 So. Rep., 271; Bellevue R. M. Co. v. Insurance Co., 39 Pac. Rep., 196, North B. & M. Ins. Co. v. Freeman, 33 S. W. Rep., 1091, approved. Quinlan v. Insurance Co., 133 N. Y., 362; Merchants’ Ins. Co. v. Brown, 25 Atl. Rep., 992; Moore v. Insurance Co., 36 N. E. Rep., 191; McKinney v. Insurance Co., 30 S. W. Rep., 1004; Hartford F. Ins. Co. v. Clayton, 17 Texas Civ. App., 644; Springfield S. L. Co. v. Insurance Co., 52 S. W. Rep., 238; Norris v. Insurance Co., 33 S. E. Rep., 566, distinguished. Schroeder v. Insurance Co., 63 Pac. Rep., 1074; Findlay v. Insurance Co., 52 Atlantic Rep., 429; Insurance Co. v. Greek, 61 Law Rep. Ann., 137, disapproved.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. A. W. Seeligson.</p>

<p>Execution—Failure to Collect—Jurisdiction—Res Adjudicata.</p> <p>Plaintiff having been one of three defendants against whom a judgment was rendered, recovered over against his codefendants on his cross-bill in case he had to pay the judgment, which he did, though no execution issued therein until six years afterwards, and then it was addressed to the sheriff or constable of another county in which one of the codefendants had recovered a judgment against another party, to satisfy which a sum of money had been paid into the hands of the defendant in this action, a constable of that precinct. The collection of this execution was resisted on the ground that the judgment was void for want of service and was dormant and a trial in justice court sustained this contention, from which no appeal was taken. Held, that such judgment of the Justice Court was final and the County Court out of which the execution issued could not render judgment against the constable for failing to collect it.</p>

<p>1.—Limitation—Adverse Possession.</p> <p>Although a deed from defendant’s mother, as survivor of the community, to plaintiff may have been intended to convey only her half interest, the possession of plaintiff, who claimed all the land under a purchase at foreclosure sale, was not that of a tenant in common with defendants, but was adverse to their claim as evidenced by a sale of part after obtaining said deed, and he was entitled to the land under the five years statute of limitation.</p> <p>2.—Same—Survivor of Community—Transfer of Homestead Interest.</p> <p>When the surviving wife sells her interest in the community homestead the homestead right terminates and the heirs of the deceased husband are entitled to possession of their interest in the property, from which time limitation begins to run against them.</p> <p>3.—Same—Minor—Marriage.</p> <p>Limitation begins to run against a minor upon her marriage.</p>

<p>1. —Injury to Brakeman—Defective Handhold—Verdict.</p> <p>A verdict for $15,000 damages for permanent injuries sustained by a brakeman while in the discharge of his duties and without negligence on his part, as the result of a fall caused by a rung of the ladder on the side of a freight car giving way due to the rotten condition of the wood to which it was attached, held supported by the facts in evidence in this case.</p> <p>2. —Evidence—Life Expectancy—Mortality Tables.</p> <p>Upon the question of the life expectancy of a brakeman who sustained injuries permanently incapacitating him to do manual labor, mortality tables were admissible to aid the jury in determining the amount of damages to be awarded, though the fact that he followed the hazardous avocation of a brakeman might be considered in determining such damages.</p>

<p>1. —Public Road—Prescriptive Right—Permissive Use—Evidence.</p> <p>In an action to restrain defendant from closing up a lane or road across his land, based in part on the ground that the public had by prescription acquired a right to use the road, it was error for the court to refuse to permit defendant to testify that prior to the filing of the suit plaintiff proposed to defendant that the lane be closed by gates, and in reply to defendant’s remark that this would inconvenience others, said that the land was defendant’s, and that defendant had the right to do as he pleased with it, as this tended to show that the use of the land by others was permissive only, and not adverse to defendant.</p> <p>2. —Same—Presumption of Dedication.</p> <p>A charge was erroneous which was so framed as to convey the idea that the mere user of a roadway for ten years was sufficient to create a presumption of the dedication of the same to the public.</p> <p>3. —Same—Pleading and Charge—Estoppel.</p> <p>Where there was no pleading that defendant had purchased the land subject to a right, by prescription or prior dedication, in the public to use the road, it was error for the court to charge that if defendant purchased under such circumstances he took subject to such right, thus applying the principle of estoppel as against defendant.</p> <p>4. —Same—Assuming Dedication.</p> <p>Such charge was also erroneous in that it was so stated as to assume that the land on which the road was located had been appropriated or dedicated to public use, instead of leaving that fact to be determined by the jury.</p> <p>5. —Same—Defining “Adverse” and “Claim of Right.”</p> <p>The court having charged that the public could by adverse use under claim of right, acquire a right to use the road, but with no definition given of the terms “adverse” and “claim of right,” it was error to refuse to give a requested charge properly defining those terms.</p> <p>6. —Same—Continuous and Uninterrupted Use.</p> <p>Where the court charged that the public must have had “uninterrupted adverse enjoyment of the road” for the requisite period of time, instead of “continuous and uninterrupted adverse enjoyment,” etc., there was no material error, as the meaning of the two expressions is the same.</p> <p>7. —Same—Prescriptive Right—Ten Years’ User.</p> <p>In this state a prescriptive right on the part of the public in a road may be acquired by adverse user for ten years, and this without the assertion of any claim of right on the part of the Commissioners’ Court of the county.</p> <p>8. —Same—Tacking on Claim Against Former Owner.</p> <p>Where defendant had owned the land only nine years, a prescriptive right to the road could not have been acquired against him without tacking on that time to some portion of the time during which his grantors owned the land, so that if the use by the public was permissive on the part of either defendant or his grantor, a right by prescription was not obtained, and therefore, a charge to the effect that the right by prescription would not be defeated unless the use was permissive on the part of both the defendant and his grantor was error.</p> <p>9. —Same—Burden of Proof as to Permission.</p> <p>It was error for the charge to place upon defendant the burden of proving that the use of the road by the public was by his permission, since plaintiff could not make out his ease without showing that such use was adverse.</p> <p>10. —Same—Act Stopping the Running of Prescription.</p> <p>Defendant’s act in attempting to fence up the road, though arrested by injunction, was sufficient to interrupt the running of limitation or prescription.</p> <p>11. —Same—Burden of Proof—legal Disabilities.</p> <p>The burden of proof was on plaintiff seeking to show a prescriptive right to the use of the land for a road, to establish that the owners of the land were free from legal disabilities and were persons against whom a prescriptive right could be acquired by adverse use.</p> <p>12. —Practice—Estoppel—Objection to Evidence.</p> <p>An objection to the admission of evidence, on the ground that it was not offered in chief and was not in rebuttal, does not estop the objector from urging on appeal that it was error for the court to exclude the evidence on the ground that it was immaterial.</p>

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

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

<p>Appeal from the District Court of Bexar. Tried below before Hon. Edward Dwyer.</p>

<p>1. —Administrator’s Sale—Defective Title.</p> <p>An administrator, in selling property of an estate, is not bound to make known defects of title within his knowledge, and where there is neither fraud nor misrepresentation and the sale is regular, the purchaser is bound to pay the amount of his bid though there be a defect in the title.</p> <p>2. —Judicial Sale—Title.</p> <p>An executor, at a sale under orders of the probate court, conveys only the interest of the testator’s estate, whatever it may be, without any warranty or guaranty.</p> <p>3. —Administrator—Independent Executor.</p> <p>Questioned -whether the acts of an independent executor are to be given the same force and effect as the acts of an administrator done under orders of a probate court having jurisdiction.</p> <p>4. —Independent Executor—Misrepresentations as to Title.</p> <p>Defendant’s vendor represented that he was the independent executor of the will of a testatrix in whom the fee simple title to certain community property of herself and husband was vested by will of the husband, and the will of the testatrix not being at hand, defendants, relying upon their vendor’s assurances, paid a cash sum and gave notes for the remainder of the purchase price. The testatrix in fact had title to only her half of the community. Held, that defendants taking title to only so much were entitled to an abatement of half the purchase price.</p>

<p>Appeal from the County Court of Williamson. Tried below before Hon. Chas. A. Wilcox.</p>

<p>1.—Sufficiency of Evidence—Killing Stock.</p> <p>Evidence held sufficient to sustain a finding that a steer struck and injured by an engine (it having disappeared and the carcass not found) had been killed.</p> <p>2.—Crossing—Signals—Stock on Track.</p> <p>Failure to give the statutory signals for a road crossing could not be considered negligence in case of cattle .killed on the track, but not at the crossing.</p> <p>3.—Witness—Evidence to Show Bias.</p> <p>The admission of interested parties to testify does not prevent their cross-examination to show bias as a witness in other particulars.</p> <p>4.—Evidence—Jury Taking Out Documents.</p> <p>A sworn statement by plaintiff in regard to his claim, Avhich had been admitted in evidence, the jury should have been permitted to take Avith them on their retirement. It was not governed by the. statutory rule as to depositions.</p>

<p>Appeal' from the District Court of Harris. Tried below before Hon. Wm. P. Hamblin.</p>

<p>Appeal from the District' Court of JefEerson. Tried below before Hon. A. T. Watts.</p>

<p>Appeal from the County Court of Jefferson. Tried below before Hon. D. P. Wheat.</p>

<p>Contract—Time of Essence—Railroad Bonus.</p> <p>A proposition to give a bonus for the construction of a railroad to V. expressly stipulated that work should be begun within thirty days and the road completed by September 1, and that time was of the essence of the contraci/. The letter of reply stated that the proposition was accepted and that the work would be begun within thirty days and pushed with due diligence. Held, that the “due diligence” thus mentioned referred to the diligence necessary to complete the road by September 1, and that a recovery could not be had on the obligation given for the bonus where the road was not completed by that time.</p>

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

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

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

<p>Appeal from the District Court of Bexar. Tried below before Hon. Edward Dwyer.</p>

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

<p>Delayed Message—Damages—Mental Anguish.</p> <p>No recovery can be had for mental anguish arising from delay in the delivery of a message causing uncertainty whether the funéral of plaintiff’s sister would be postponed to enable her to be- present, no other damage being shown and plaintiff in fact attending the funeral.</p>

<p>1. —Appeal—Final Judgment.</p> <p>A judgment can not form the basis of an appeal which does not dispose of all the parties and all the issues involved.</p> <p>2. —Same—Consolidated Suit—Garnishment.</p> <p>Where several suits, by garnishment and otherwise and involving the right to a certain fund, were consolidated and on the trial, the money having been deposited in court, one of the parties occupying the attitude of a mere stockholder was discharged, and a garnishing creditor whose debt had not then been reduced to judgment was held to be entitled to priority over another claimant, and the case was continued on the docket until the amount due such creditor should be judicially determined, the judgment was not a final one from which an appeal could be taken.</p>

<p>1.—Mechanic’s Lien—Materialman—Personal Judgment.</p> <p>The material man furnishing notice of his claim to the owner of the property before the latter has settled with the contractor becomes entitled, under the mechanic’s lien law, to a personal judgment for the money against such owner.</p> <p>ON MOTION FOR REHEARING.</p> <p>2.—Same—Homestead—Lien.</p> <p>Where the property improved is homestead and the contract for improvement is not signed by the wife, no lien can be established against it, and the material man serving notice in accordance with the statute upon the owner before settlement with the contractor obtains neither lien nor the right to a personal judgment against the owner; he can reach such indebtedness only by garnishment.</p>

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

<p>1. —Trial Withdrawing Plea—Discretion of Court.</p> <p>It is within the discretion of the trial court to allow a party to withdraw his plea and enter another after the trial has begun, and an appellate court will interfere with his ruling only in a plain case of abuse of this discretion.</p> <p>2. —Same—Contract for Sale of Land—Specific Performance—Authority of Agent.</p> <p>After the trial had begun and it Avas shown from the undisputed evidence that defendant’s agent was authorized to close a contract for sale of land, the specific performance of which was sought to be enforced, the court did not abuse its discretion in refusing to allow plaintiff to withdraw his announcement of ready and swear to a denial of the agent’s authority.</p> <p>3.—Contract for Sale of Land—Purchase for Immoral Purposes—Evidence— Pleading.</p> <p>In a suit to enforce the specific performance of a contract to sell land, evidence that plaintiff intended purchasing the property for the construction of a variety theater thereon to be conducted in an unlawful manner and for immoral purposes was properly rejected, this defense having been stricken from defendant’s answer, since the proposed business was not necessarily unlawful or immoral, proof of which could be made without pleading, but depended on the manner in which it would be conducted.</p>

<p>1.—Railways—Setting Out Fires—Pleading.</p> <p>Plaintiff having alleged the failure of the railway to provide and keep in repair suitable spark-arresters as the specific cause of the fire, it was error to submit the overloading and negligent handling of the engine as ground for recovery.</p> <p>2.—Property Destroyed by Fire-Proof of Value.</p> <p>The cost of property destroyed by fire is not sufficient, standing alone, to show its value at the time of its destruction.</p> <p>3.—Negligence—Burden of Proof.</p> <p>When plaintiff had made out a prima facie case of negligence on the part of defendant in setting fire to his property by sparks from its engine it devalved on defendant to rebut it, but the burden of proof on the whole case was on plaintiff.</p>

<p>1. —Practice on Appeal—Conflict of Evidence.</p> <p>The case being one of conflicting evidence as to negligence on the part of the defendant and contributory.negligence on the part of the deceased, a brakeman killed while coupling cars, the Appellate Court declines to disturb the verdict.</p> <p>2. —Railroads—Switching Crews Duty to Keep Lookout.</p> <p>It is the duty of each member of a switching crew, when engaged in switching cars, to keep a lookout for the safety of the other members as well as his own.</p>

<p>1.—Master and Servant—Assumed Risk—Knowledge of Servant.</p> <p>Where the servant, a member of a bridge repairing gang, knew that the jack furnished for use in raising bridges while being repaired, was the kind always used and furnished by the company for such work, he assumed the risk incident to its use.</p> <p>2.—Same—Warning of Danger.</p> <p>Whether or not the danger resulting from the use of the jack arose out of the negligence of the master, became an immaterial question where the servant was given warning of the danger, by the usual cry of “Watch out for the drop,” in time to have saved himself from injury, since in such case the negligence of the master was not the proximate cause of the injury.</p> <p>3.—Same—Constructive Knowledge.</p> <p>The servant assumes the risk of all dangers of which he has actual or constructive knowledge, meaning by the latter such knowledge as he necessarily would have acquired in the exercise of ordinary care for his own safety.</p> <p>4.—Same—Contributory Negligence.</p> <p>The failure of the servant to get from under the bridge, which was jacked up, after the customary warning to look out for the drop, was contributory negligence such as can not be justified on the ground that it resulted from forgetfulness on his part and mere inattention to his surroundings.</p>

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

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

<p>Appeal from the District Court of Marion. Tried below before Hon. P. A. Turner.</p>

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

<p>1. —Attachment—Damages, Actual and Exemplary.</p> <p>Where in attachment the evidence shows that no actual damages were occasioned by reason of the levy, a recovery for exemplary damages can not be sustained.</p> <p>2. —Same—Exemplary Damages—Mistake by Landlord.</p> <p>A landlord is not liable for exemplary damages where, in an action against a tenant for rent he intended suing out a distress warrant, for which he had sufficient grounds, but by mistake got out an attachment.</p>

<p>1. —Insurance Policy—Breach of Warranty—Use of Intoxicating Liquors.</p> <p>A negative answer to the questions in an application for life insurance, “Do you use spirituous, vinous or malt liquors? Have you ever used them to excess?” did not amount to a denial that the applicant had ever drunk intoxicating liquor at all or occasionally to excess, but merely that he had never been addicted to the habit, the word “use” having the meaning of “habit,” “practice,” or “custom.”</p> <p>2. —Same.</p> <p>Evidence considered and held not to conclusively show such habit, practice or custom in the use of intoxicating liquors as to avoid a policy of life insurance on the ground that the applicant gave negative answers to the inquiry whether he used intoxicating liquors.</p>

<p>Appeal from the District Court of McLennan. Tried below before S. P. Ross, Esq., Special Judge.</p>

<p>Appeal from the County Court of Lee. Tried below before Hon. John H. Tate.</p>

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

<p>Appeal from the District Court of Bell. Tried below before Hon. Jno. M. Furman.</p>

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

<p>Appeal from the District Court of Medina. " Tried below before Hon. R. H. Burney.</p>

<p>1.—Carriers of Freight—liability for Goods lost in Transit.</p> <p>Where plaintiff sued for a shortage in the weights of certain cars of coal shipped to him over defendant’s road as the terminal carrier it was error for the court to charge that if, after defendant had received the coal, its agents or employes failed to exercise ordinary care for its safe transportation and delivery at destination.and by reason of such failure plaintiff did not receive the full amount of coal billed to him, the jury should find for plaintiff the value of the coal lost, but unless they so found and believed, to find for the defendant, since defendant as a common carrier was liable for goods lost, injured or destroyed while in its care from any cause whatsoever, other than the act of God or the public enemy, the fault of the owner or a. seizure of the goods under legal process.</p> <p>3.—Same—Connecting Carrier—liability of Delivering Carrier.</p> <p>A connecting carrier who has completed the transportation and delivered the goods to the consignee in a damaged condition or deficient in quantity is liable for the damage or deficiency without proof that it was occasioned by his fault, unless he shows that he received the goods in the condition in which he delivered them.</p>

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

<p>1. —Record on Appeal—Bill of Exceptions—Statement of Facts—Conflicts.</p> <p>Where a bill of exceptions states that certain evidence was admitted, but the agreed statement of facts, purporting to contain all the material facts proved, does nob show such evidence, the statement of facts will control the bill.</p> <p>2. —Telegraph Company—Nondelivery of Message—Evidence.</p> <p>In an action for damages resulting from the nondelivery of a telegram evidence was admissible to show that a physician in the town knew where the addressee was stopping and would have informed the messenger boy if inquiry had been made of him.</p> <p>3. —Same—Charge—Measure of Damages.</p> <p>In such an action a charge that if the jury found for the plaintiff under the foregoing charge, then in estimating his damage they should take into consideration the mental suffering undergone by him, if any, by reason of his not being present during the last hours of his mother’s life, was not objectionable as furnishing no guide to the jury for ascertaining the damage or amount to be awarded to plaintiff, such charge not being affirmatively erroneous, and there being no request for a more specific instruction.</p> <p>4. —Same—Message in “Care Some Hotel”—Diligence.</p> <p>The fact that a message was addressed to plaintiff at a named town, “Care some hotel,” did not of itself authorize the telegraph company to stop its search after a visit to the hotels, unless in so doing it acted as a reasonably prudent person would have done under the circumstances.</p> <p>5. —Charge—Weight of Evidence.</p> <p>A charge is properly refused where it singles out certain testimony which of itself would not constitute a defense to the action, and seeks to instruct the jury with reference to the effect to be given it.</p> <p>6. —Assignment of Error.</p> <p>Where assignments of error relating to different rulings and subjects are grouped in violation of the rules and are not followed separately by appropriate propositions and statements, they will not be considered.</p> <p>7.—Same—Evidence Explaining Absence of Witness.</p> <p>Where a witness for the defendant (its messenger boy) who had testified at a former trial was absent at the second trial, and plaintiff’s counsel had drawn out that fact in cross-examination, it was error for the court to refuse to permit defendant to show by the testimony of its attorney that he had made efforts to secure the attendance of the witness, and had ascertained that he had left the state and gone to Mexico.</p>

<p>1. —Statute of Frauds—State School land Purchase.</p> <p>. A party has the right to purchase additional school lands from the State where he has an equitable title to his home tract, by verbal purchase from another, such as entitles him to specific performance of such contract.</p> <p>2. —Same—Possession and Improvements.</p> <p>Where D.’s home was on land he had purchased from another by verbal contract only, for an agreed price, and he had taken possession of the land, placed some improvements thereon, found by the jury to be permanent and - valuable, and had' kept interest paid up on the agreed price, his title to the land was such -as gave him and his successors in title the right to purchase additional school lands from the State.</p> <p>3. —Same—Deed to Sub-Vendee.</p> <p>D. having sold to B., the fact that the original vendor then made deed direct to B., who thereupon paid to such original vendor the price B. had agreed •to pay, did not alter the case.</p>

<p>Opening and Conclusion—Admission—Attachment.</p> <p>Where plaintiff sued on an account, with an ancillary attachment, and defendant admitted plaintiff’s cause of action, it was error for the court to refuse defendant the right to open and conclude unless he also admitted the truth of the grounds alleged in the affidavit for the attachment.</p>

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

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

<p>1. —Charge—Assuming Fact.</p> <p>A charge is not on the weight of evidence as assuming a fact where it leaves to the jury to determine whether or not the fact existed.</p> <p>2. —Same—Bequest Necessary.</p> <p>Where a charge given is not affirmatively erroneous, but merely deficient in some particular; a special charge should be requested covering the deficiency, or the error will not be ground for reversal.</p> <p>3. —Belease of Damages—Fraud—Evidence Baising Issue.</p> <p>In an action for personal injury and loss of baggage evidence considered and held sufficient to raise the issue of fraud on the part of the railroad company’s claim agent in procuring from plaintiff a release of damages by representing that the paper he induced her to sign was merely a receipt for money he was giving her as an act of charity.</p> <p>4. —Assignment of Error.</p> <p>Where two assignments of error are submitted as one, followed by the single proposition that, “The requested charges presented the law of the case and should have been given,” and the two assignments raise distinct errors relating to different rulings and different subjects, such assignments are not entitled to consideration.</p> <p>5. —Act of God—Bain Storm—Washout of Track.</p> <p>A fall of rain producing a volume of water so great that it could not reasonably have been anticipated and provided against by very skillful and competent railroad builders, taking into consideration the lay of the land there, will be deemed an act of God such as will render a failure to have sufficient openings and sluiceways for such a volume of water not negligence on the part of the railway company.</p> <p>6. —Same—Concurring Negligence.</p> <p>Where the railway company was guilty of negligence in running its train while an unprecedent rain storm was raging and at too high a rate of speed, and .this negligence concurred with the rain storm in bringing about a wreck of the train, the company is liable, notwithstanding the injury is due in part to such act of God.</p> <p>7. —Railroad—Negligence—Notice of Danger—Evidence.</p> <p>It was competent for- a passenger on a train that was wrecked in a rain storm to testify that shortly prior to the wreck he^ heard a railway employe say to the engineer of such train, “You had better not pull out, as I believe you will go into the river;” and it was immaterial that the wreck did not occur at the exact spot thus indicated.</p> <p>8. —Same—Opinion—Expert Evidence.</p> <p>Testimony by a railroad roadmaster that “the running of passenger trains over a track submerged with water is done with no danger if the train is running slowly, and especially is this true if a freight train has just been run over the track and made the crossing safely,” was not admissible, since this was the opinion and conclusion of the witness on a matter not the subject of expert testimony under the circumstances shown. •</p> <p>9. —Release of Damages—Eraud in Procurement.</p> <p>Evidence considered and held sufficient to sustain a finding that a railroad claim agent was guilty of fraud in procuring from plaintiff a release of damages for personal injury by purposely concealing from her the nature of the instrument she signed and inducing her to sign it by declarations of sympathy and solicitude for her.</p>

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

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

<p>1.—Delivery of Deed—Intent of Grantor.</p> <p>In order to render a deed effective it must be delivered into control of the grantee with intent of the grantor that it shall become operative as a conveyance.</p> <p>^2.—Same—Same—Innocent Purchasers—Estoppel.</p> <p>Those claiming as innocent purchasers under a deed delivered without the consent of the grantor can hold only by estoppel based upon a showing that the grantor was guilty of negligence which brought about the unauthorized delivery.</p> <p>3.—Exchange of Land—Unauthorized Delivery of Deed—Fact Case.</p> <p>In view of a contemplated exchange of lands between plaintiff and another, deeds by each were placed in the hands of a land agent, plaintiff reserving the right to satisfy himself as to the other’s title before consummating the trade. The agent delivered plaintiff’s deed without his consent and the grantee had it recorded and executed a deed of trust to the property to secure a note for money borrowed thereon from parties who had no notice, actual or constructive, of want of the grantor’s consent to the delivery. Held, that the title still remained in plaintiff and he could enjoin a sale under the deed of trust.</p>

<p>1. —Charge—Joint Defendant.</p> <p>Where several lines of railway were joined as defendants to a suit for injury to plaintiff’s live stock in its transportation, it was not erroneous to charge, as to defendants generally, on the duty to give time and opportunity for the cattle to eat, drink and rest, though there was no evidence of default in such particular except by one defendant.</p> <p>2. —Carrier—Diligence to Transport—Charge.</p> <p>An instruction that it was the duty of a carrier to transport live stock “with ordinary care, speed and diligence” held not misleading in view of other parts of the charge showing that they were held only to use ordinary care to transport with such speed.</p> <p>3. —Same.</p> <p>Special charges allowing each of the connecting carriers jointly sued a reasonable time to receive and begin the transportation of live stock when tendered to them, held to so qualify a charge elsewhere given that it was not to be construed as to require them to begin transportation forthwith upon tender.</p> <p>4. —Negligence—Charge.</p> <p>Charge defining negligence on the part of a carrier held not inaccurate, or, if so, corrected by a requested instruction given.</p> <p>5. —Same.</p> <p>A charge holding a carrier liable for resulting injuries to live stock if they “negligently” bumped together the cars in switching, required the jury to find the act to be negligently done before awarding damages.</p> <p>6. —Same.</p> <p>A charge holding a carrier liable for all - damages which it “caused or contributed to” by its negligence was not erroneous, or, if so, was not ground for reversal where substantially the same instruction was given at request of the party complaining of it.</p>

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

<p>1. —Avoiding Contract—Duress.</p> <p>The free will of the contracting parties is essential to the making of a contract, and if by the wrongful conduct of one party the other is bereft of his free will power, the contract obtained thereby may be avoided on the ground of duress.</p> <p>2. —Duress—Standard Determination.</p> <p>Whether there was duress is to be determined, not by any arbitrary standard, but by the resisting power of the party under all the circumstances of the case.</p> <p>3. —Duress by Fear—Imprisonment of Child.</p> <p>Under the law of duress by putting in fear, a man’s child stands in the same position as himself and fear of imprisonment of a child will destroy the free agency of the parent, and the agreement he makes under such circumstances can not be enforced.</p> <p>4. —Cancellation of Deed—Duress—Assignment of Cause of Action.</p> <p>A deed of trust to certain land was obtained from plaintiff’s father, a blind old negro over 70 years of age, by promised immunity from criminal prosecution of a son who had given a deed of trust on the same land, representing it to be his, and borrowed money thereon. Held, that an action to cancel the deeds of trust, instituted by the father, did not die with him, but plaintiff, another son to whom the father had transferred his title in consideration of support and maintenance the remainder of his life, could prosecute the suit.</p> <p>5. —Same—Same—Pleading—Evidence—Harmless Error.</p> <p>While an allegation that the facts connected with the execution of a mortgage, which was obtained by duress, were imparted to plaintiff by the mortgagor should, perhaps, have been stricken from the petition, and testimony sustaining such allegation excluded, as hearsay and immaterial, the failure to do so was not reversible error where no injury is shown to have resulted to appellants thereby and all the other testimony tended to show that the mortgagor was under duress when he executed the mortgage.</p> <p>6. —Duress by Pear—Pleading and Proof.</p> <p>An allegation charging that the mortgage was obtained by direct threats to imprison the mortgagor’s son unless it was given, held sustained by proof that the mortgagee’s agent informed the mortgagor that his son was guilty of a penitentiary offense and assured him that if he would give his note, secured by the mortgage, the mortgagee would not go out of his way to prosecute the son.</p> <p>7. —Pleading and Proof—Harmless Error.</p> <p>Allegations and proof as to what was the consideration for the execution of the deed to plaintiff from his father were utterly immaterial, the deed itself reciting the consideration, and could not have injured defendant.</p> <p>8. —Same—Consideration.</p> <p>Evidence to prove an agreement between plaintiff and his father, in which the latter agreed to prosecute the suit for plaintiff who agreed to support him during his life, was not objectionable as showing a different consideration from that recited in the deed, or a contract to be performed in the future.</p> <p>9. —Duress—Evidence.</p> <p>Proof of statements “ of defendant to members of the mortgagor’s family shortly before the execution of the mortgage was admissible as tending to show what defendant probably said to the mortgagor.</p> <p>10. —Same—Same.</p> <p>A statement to the mortgagor’s daughter and son-in-law that if they did not fix up the matter defendant would send the mortgagor’s son to the' penitentiary was admissible as showing a concerted plan to coerce the members of the family into paying the debt due from the son to the mortgagee.</p> <p>11. —Evidence.</p> <p>Testimony that the mortgage had been changed after its execution was admissible in support of the allegation that the note which it secured had been changed.</p> <p>12. —Same.</p> <p>The deed from the mortgagor to plaintiff was properly admitted in evidence whatever may have been the consideration therefor.</p> <p>13. —Same—Petition—Date of Filing.</p> <p>Proof of the date of filing of the original petition, filed in the case by the mortgagor before he assigned the cause to plaintiff, did not place the petition itself in evidence.</p> <p>14. —Illness of Juror—Signing Verdict.</p> <p>Where one of the jurors became ill during the trial and was excused by agreement of both parties, it was not necessary that the verdict be signed by the remaining eleven, the signature of the foreman being sufficient.</p> <p>15. —Compounding Felony.</p> <p>One who executes a mortgage for the purposeo and with the understanding that his son shall not be criminally prosecuted for °an offense he has committed, is not thereby guilty of compounding a felony.</p> <p>16. —Same—Repudiating Unlawful Contract.</p> <p>Though the father had been guilty of compounding the crime of his son, that would not prevent him from ’ annulling the unlawful contract.</p> <p>17. —Charge—Duress.</p> <p>, A charge to find for plaintiff if the representations or threats of defendants exercised a controlling influence over the will of the mortgagor and induced him to execute the mortgage, and if without such threats he would not have executed the same, held applicable to the facts in evidence.</p> <p>On Motion fob Reheabing.</p> <p>18. —Evidence—Fraudulent Representations.</p> <p>Fraudulent representations other than those alleged, made to the defrauded party or even to third persons, are admissible when so connected or a part of the general scheme to defraud as to show knowledge, intent or design.</p>

<p>Appeal from the County Court of Gonzales. Tried below before Hon. W. W. Glass.</p>

<p>1. —Negligence—Injury to Servant—Switching Cars—Contributory Negligence.</p> <p>Plaintiff, a head yard clerk, acting upon information given by the engine foreman that other ears were to be attached to a string standing on defendant’s track, went to the rear car of the string, as was his duty, and removed from the drawhead the link bill which was required to be on the rear car to give notice to switchmen and other employes of the destination of the ears, but seeing no preparation for moving the other cars he stepped back on the track and replaced the link bills when an engine was violently propelled against the front end of the cars causing them to back and run over plaintiff. Held, that plaintiff was injured through the negligence of defendant’s engineer or engine foreman without negligence on his part contributing to the injury.</p> <p>2. —Same—Two Grounds Alleged—Pleading and Charge.</p> <p>Where the petition alleged two different grounds of negligence, the propelling of the engine against the string of cars which ran over plaintiff with such violence as to cause them to start suddenly backwards, and the backing of the cars over a public crossing without having a man in position to give warning, there was no error in a charge submitting each separately.</p> <p>3. —Contributory Negligence—Charge as a Whole.</p> <p>Where plaintiff’s negligence, if any, consisted in his being where he was when struck, and such act, if negligent, naturally contributed proximately to his injury, a charge defining contributory negligence and instructing a verdict for defendant if plaintiff was- guilty of contributory negligence proximately causing or contributing to cause his injury, while in itself probably misleading, held not objectionable when considered in connection with the succeeding paragraph of the charge.</p> <p>4. —Charge—Invited Error.</p> <p>An appellant can not complain of error in a charge where a charge on the same subject requested by him invited the same error.</p> <p>5. —Same—Assuming Controverted Pacts.</p> <p>A requested charge reciting as undisputed a number of facts, among others that plaintiff knew that the string of .ears which struck him was about to be moved, was properly refused, the evidence showing that such fact was not undisputed.</p> <p>6. —Evidence—Hearsay—Authority of Engine Foreman.</p> <p>Plaintiff's testimony that the engine foreman told him that certain cars were to be attached to the cars standing on the track where he was injured, was admissible on the issue of plaintiff’s contributory negligence, it appearing that the foreman had control over the movement of cars.</p> <p>7. —Charge—Included in Main Charge—Assumed Bisk.</p> <p>Requested instructions on assumed risk held properly refused because substantially given in the main charge.</p> <p>8. —Street Crossing—Buies of Bailway—Maintaining lookout—Evidence.</p> <p>A rule of a railway company that in no case shall a train be baekéd over a public crossing unless there is a man on the rear car to see that the way is clear, related to the movement of cars in the switch yards as well as regular trains, and under the circumstances of this case was admissible in evidence on the subject of plaintiff’s contributory negligence.</p> <p>9. —Fellow Servants—Yard Clerk—Engineer—Engine Foreman.</p> <p>A head yard clerk, charged with the duty of making transfers to and over connecting lines, taking numbers, seals and initials of cars and putting link bills on the drawheads, was not a fellow servant with the engine foreman, engineer and others engaged in operating the train.</p> <p>10. —Street Crossing—Evidence—Stepping Distance.</p> <p>Testimony that the street crossing, near which plaintiff was injured, had apparently not been altered: that there was nothing to indicate any change for some time, and that it seemed to be an old crossing, was sufficient to show that the crossing had not been changed, and estimates as to the length and width of planking at such crossing, based upon the witness having stepped the distance, were admissible.</p> <p>11. —Verdict—Excessiveness.</p> <p>A verdict of $12,000 for the loss of plaintiff’s leg and injuries affecting his eye sight, which from the evidence the jury might have concluded were perman- ■ ent, held not excessive.</p> <p>Oh Motioh for Rehearing.</p> <p>12.—Contributory negligence—Proximately Contributing.</p> <p>Although _ plaintiff’s only negligence, if any, was such as naturally contributed proximately to his injury, defendant can not complain of a charge instructing a verdict for defendant if plaintiff’s negligence proximately contributed to his injury, where a requested charge concluded with an instruction for defendant if plaintiff’s negligence caused or contributed to his injury; and the fact that the main charge required plaintiff’s negligence to “proximately” contribute to the injury was immaterial.</p>

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

<p>1. —Negligence—Railway Company—Leaving Clinkers in Yard.</p> <p>Where plaintiff, a brakeman, while coupling ears in the yards, stumbled over a clinker and was injured, and the evidence showed no inspection of that part of the track by the railway company, and the clinker was along the side of the track upon which, in coupling cars, the brakeman was expected to walk, the jury were justified in finding that the company was guilty of negligence in failing to perform the duty of inspection.</p> <p>2. —Contributory Negligence—Going Between Moving Cars.</p> <p>A brakeman was not guilty of contributory negligence, as matter of law, in going between slowly moving cars to uncouple them where, the automatic coupler having failed to work, it was customary for the uncoupling to be done in this way.</p> <p>3. —Master and Servant—Assumed Risk.</p> <p>The fact that a servant is injured because of the way of doing the work selected by him, when if he had selected another way the injury would have been avoided, does not, as a matter of law, render him guilty of contributory negligence, the true test being whether he exercised ordinary care in performing' the work as he did.</p> <p>4. —Same—Assumed Risk—Charge.</p> <p>A charge, set out at length, held to fairly submit to the jury the defenses of assumed risk and contributory negligence in an action by a brakeman for injury received while uncoupling cars from a moving train.</p> <p>5. —Same—Bellow Servant—Common Law.</p> <p>A roadmaster whose duty it is to keep the railroad yard and track clear of clinkers is not, under the common law, a fellow servant with a brakeman whose duty it is to couple and uncouple cars in the yard.</p>

<p>1.—limitations—Breach of Contract—Fraud.</p> <p>In an action for breach of contract limitation is no bar to the defense of fraud, accident or mistake set up by the defendant.</p> <p>2.—Fraud—Evidence.</p> <p>Fraud may be shown by circumstantial as well as by direct and positive evidence.</p> <p>3.—Sale of land—Abstract of Title.</p> <p>Where in a contract for the sale of land the seller agrees to furnish an abstract of title such that a loan could be obtained on the vendor’s lien notes to be given by the purchaser, and the seller fails to furnish such an abstract, he is not entitled to recover damages for the buyer’s refusal to complete the purchase.</p> <p>4.—Same—Written Contract—Omission—Evidence.</p> <p>Parol evidence held sufficient to show that an agreement that the seller was to furnish an abstract of title was inadvertently omitted from a written contract of sale.</p>

<p>1.—Action for Penalty—Amount—Jurisdiction.</p> <p>An action for penalty under art. 326, Rev. Stat., for failing to feed and water live stock, the penalty being $5 to $500, was properly brought for $300, though a claim for the full amount of the penalty, together with damages sued for, would have made the total amount for which recovery was sought beyond the jurisdiction of the court.</p> <p>2. —Demand for Cars—Penalty—Damages.</p> <p>A demand for cars, though not in writing as required by the statute, where made a basis for recovering the statutory penalty for failing to furnish them, may be pleaded as a basis for recovering damages for delay in making shipment.</p> <p>3. —Carrier—Watering live Stock—Demand.</p> <p>It is not necessary that the pleading show that a demand of the shipper that live stock be watered was made of any particular agent of the carrier.</p> <p>4. —Pleading—Negativing Statutory Construction.</p> <p>Exceptions to a statutory liability, contained in the statutory description of the injury, must be negatived by plaintiff’s pleading, but see pleadings in which the existence of a contract exempting a carrier from liability to feed and water live stock was held to be sufficiently denied in the supplemental petition.</p> <p>5. —Carrier—live Stock—Feeding and Watering.</p> <p>The penalty prescribed by the statute does not attach for failure of the carrier to permit or enable the shipper who has contracted to feed and water to do so.</p> <p>6. —Same—Burden of Proof.</p> <p>The shipper is held to negative the existence of a contract by which he himself undertook to feed and water live stock in transit not only by his pleading but with evidence.</p> <p>7. —Damages—Penalty—Practice on Appeal.</p> <p>In reversing a judgment for penalty and damages for failing to feed and water live stock in transit on account of errors in the charge relating only to penalty, the court will not, at request of the party recovering, reverse as to penalty and render judgment for the damages alone, the two being so connected as to properly be considered together.</p>

<p>Appeal from County Court of Lee. Tried below before Hon. John H. Tate.</p>

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

<p>Appeal from the County Court of Travis. Tried below before Hon. Jas. R. Hamilton.</p>

<p>1. —Civil Action—Penalty—Degree of Proof.</p> <p>In an action for the recovery of penalty on a liquor dealer’s bond, plaintiff may recover upon preponderance of the evidence, and need not establish his case beyond a reasonable doubt.</p> <p>2. —Practice on Appeal—Sufficiency of Evidence.</p> <p>An objection to a judgment recovering on the bond of a liquor dealer, that he was not shown to be a licensed dealer, is not available on appeal where not raised in the trial court.</p> <p>3. —liquor Dealer’s Bond—Place of Business.</p> <p>Recovery may be had on a liquor dealer’s bond though his application for license designates two places in which the business is to be conducted. But see application held not necessarily to describe two places.</p> <p>4. —liquor Dealer’s Bond—Constitutional law.</p> <p>The law regulating dealers in intoxicating liquors, and requiring bonds of them, was not unconstitutional under the fourteenth amendment to the Federal Constitution. Douthit v. State, 97 Texas, 344.</p>

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

<p>1. —Notes—Indorsement—Findings of Fact—Presumption.</p> <p>Error from .the District Court of El Paso. Tried below before Hon. J. M. Goggin.</p>

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

<p>1. —Carriers of Freight—Ordering Cars—Authority of Station Agent.</p> <p>It will not be presumed that a railroad station agent has authority to contract with a shipper to furnish cars for a shipment to be made from another and different station.</p> <p>2. —Same—Pleading and Charge.</p> <p>Allegations that plaintiffs contracted with defendants’ agent at O. for certain cars to be furnished at S., for a shipment of cattle, did not warrant a charge authorizing a recovery if said agent, acting as the agent of plaintiffs, forwarded their order to the station agent at S. calling for cars to be furnished there, and the cars were not so furnished.</p>

<p>1. —Cattle Shipment—Connecting Lines—Liability Properly Restricted.</p> <p>In an action for damages to cattle on a through shipment, brought against one line only, plaintiff having made a settlement with the other connecting lines, certain charges, set out in the opinion, held to properly restrict plaintiff’s right of recovery of damages occurring on defendant’s line and resulting from its negligence.</p> <p>2. —Same—Evidence—Market Sales.</p> <p>It was competent for a witness to testify that the cattle market in Kansas City was better early on a stated Monday morning than at any other time in the day, by showing that the market was generally better early in the morning than later in the day, the witness being familiar with the fact about which he thus testified.</p> <p>3. —Same—Delay of Several Lines Concurring.</p> <p>Where defendant’s delay, concurring with that of the other connecting lines, caused the cattle to be late in arriving at market, it can not be heard to say that the other carriers alone are liable; nor will the fact that the other lines could, by the use of ordinary care and diligence on their part after the cattle were actually received by them, have gotten them to market at the intended time, relieve the defendant of liability for its delay.</p> <p>4. —Evidence—Pleading Introduced—Limiting.</p> <p>Where defendant introduced in evidence plaintiff’s original petition for the purpose of showing that the amended petition, on which the trial was being had, set up a new cause of action, when, in fact, there was no issue as to new cause of action in the case, and the court instructed the jury that they could not consider such petition for the purpose of showing that plaintiff had set up a new cause of action, but might consider it for any other purpose if they saw proper to do so, there was no error of which plaintiff could complain.</p>

<p>Appeal from the District Court of Hardeman. Tried below before Hon. S. P. Huff.</p>

<p>1. —Master and Servant—Defective Appliance—Assumed Risk.</p> <p>Where the servant was required to work with a hydraulic punch which was old and worn, so that its handle was liable to slip from the slot and so cause injury to the hand of the person using it, and its defective condition and liability to cause such injury was known to the servant, the risk of using the punch was one which he assumed.</p> <p>2. —Same—Order of Foreman.</p> <p>An allegation that the defects and dangers from the operation of the punch were not so apparent and imminent as to justify a reasonably prudent man in refusing to attempt to use it when peremptorily ordered to do so by his foreman, held not sufficient to take the resulting injury from the field of assumed risks, no coercion being alleged.</p> <p>3. —Same—Obvious and Known Danger.</p> <p>Where the risks and dangers are obvious, or known to the servant, he assumes the risk of using the defective appliance, however careful and prudent he may be in the use of it, and even though the neglect of the master may have been the efficient cause of the defects. The distinction between assumed risk and contributory negligence pointed out.</p>

<p>1.—liquor Dealer—Sale to Minor—Charge—“Knowingly.”</p> <p>Where, in an action against a liquor dealer for selling liquor to a minor, and for permitting the minor to enter and remain in the saloon, it was admitted that, if the person in charge of the saloon sold liquor to the minor, he must have known that he was a minor, it was error, as tending to confuse and mislead the jury, for the court’s charge, in submitting the question of whether defendants or their agents sold liquor to the minor, to be qualified by the expression, “knowing that he (the minor) was in defendant’s saloon and received such liquor.”</p> <p>2. —Same.</p> <p>For the same reason it was error for the charge, in submitting the issue of whether defendants permitted the minor to remain in the saloon, to require that they should have knowingly permitted him to so remain.</p> <p>3. —Same—Definition of “Remain.”</p> <p>A definition of the word “remain” in the following terms, “In this connection you are instructed that the term ‘remain’ is not to be given its restricted sense, but means rather something that exists and continues, after some other time, or event, or to tarry or loiter,” is held to have had a tendency to confuse the mind of the jury.</p>

<p>Appeal from the District Court of Eastland. Tried below before Hon. J. H. Calhoun.</p>

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

<p>Appeal from the District Court of Grayson. Tried before Hon. Bichard Morgan.</p>