Volume 38 — Texas Civil Appeals Reports

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

<p>1. —Carrier of Passengers—Authority of Ticket Agent.</p> <p>A railroad station ticket agent, whose duty it is to sell tickets upon payment therefor, had not implied authority to give any binding assurance to a passenger who had lost her through ticket, purchased elsewhere, that the train conductor would carry her on to the end of her journey without the exhibition of a ticket, and upon her statement of its loss.</p> <p>2. —Same—Loss of Ticket—Ejectment of Passenger.</p> <p>A railway company is not liable in damages for the action of its train conductor in putting off the train, for nonpayment of fare, a passenger who claimed that she had lost her ticket, nor did it avail that she claimed that her trunk had been checked on the ticket, and was in the baggage car, with offer to identify it, as she could have sold the ticket after the trunk was checked.</p> <p>3. —Same—Tender of Security for Pare.</p> <p>The conductor was not bound to accept the passenger’s offer of her watch and rings as a pledge of the payment of her fare upon reaching her destination, as such offer was not tantamount to the presentation of a ticket or the tender of money.</p>

<p>1. —Evidence—Opinion—Negligence.</p> <p>The existence of a rule requiring section foreman to flag against trains at curves is not conclusive as to the failure to do so being negligence in a particular case, and the opinion of a skilled railroad man, that the curve in question was not one where such precaution would be considered necessary, was admissible.</p> <p>2. —Evidence—Custom.</p> <p>On the issue of negligence in failing to signal, by whistle, the approach of a train to a curve, evidence as to the giving of such signal by other trains was admissible to show that it was regarded as a point where such signal should be given.</p> <p>3. —Release—Consideration—Evidence.</p> <p>Evidence that a release of damages relied on as a defense was executed in consideration of a promise to pay plaintiff for his lost time was properly admitted.</p> <p>4. —Release—Consideration—Reemployment.</p> <p>While reemployment of an injured servant for a time wholly optional with the master was too uncertain to form consideration for a release of his damages, reemployment for one day certain, and afterwards at the will of the employer only, was a sufficient consideration.</p> <p>5. —Accord—Promise—Satisfaction.</p> <p>A release of damages by'an injured employe, in consideration of reemployment and a promise to pay him for lost time, followed by such reemployment, was a defense to his action for damages for the injury where the reemployment and promise to pay for the time lost, though such payment was not made, was accepted in lieu of his original right of action for the damages.</p>

<p>Appeal from the District Court of Travis Comity. Tried below before Hon. Y. L. Brooks.</p>

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

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

<p>1. —Action to Set Aside Judgment—Diligence.</p> <p>In a suit to set aside a judgment duly rendered by a court of competent jurisdiction, it is not sufficient to show that injustice has been done, or that plaintiff had a good defense which he was prevented from making upon the trial, but he must show a clear case of diligence as well as merit—that he had a good defense which he was prevented from making by fraud, accident, or the acts of the opposite party, wholly unmixed with any fault or negligence on his part.</p> <p>2. —Same—Discharge in Bankruptcy—Pleading.</p> <p>When a defendant suffers judgment to be taken against him which he might have avoided by pleading and proving his discharge in bankruptcy, he can not obtain relief therefrom in equity.</p>

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

<p>Jurisdiction—Amount—Mandamus—County Court.</p> <p>Where the action, was one of mandamus to compel school trustees and the county superintendent to approve school warrants in the aggregate amount ol $240, the County Court, and not the District Court, had jurisdiction, the amount involved exceeding $200 and being less than $500.</p>

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

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

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

<p>Appeal from the District Court of Wilbarger. Tried below before Hon. L. P. Bruner, special judge.</p>

<p>1. —Pleading and Charge—Personal Injury—Expense of Medicines.</p> <p>In an action for personal injuries, it was error for the charge to authorize the jury, in estimating what amount would compensate plaintiff, to consider “all reasonable and necessary expenses incurred by plaintiff for medicines,” where plaintiff’s pleadings did not claim, nor the proof show, that any expenses were incurred for medicines.</p> <p>2. —Same—Harmless Error.</p> <p>Where the charge contains affirmative error of this character it can not be presumed that, because there was neither pleading nor evidence in relation to expenses of medicines, the jury was not misled, and the error, therefore, harmless. Expense for medicines is an ordinary incident of personal injury, and it must be assumed that the jury considered what the charge told them they might consider.</p> <p>3. —Same—Motion for New Trial—Appeal.</p> <p>It was not necessary, in order that such error should be available on appeal, that it should have been made one of the grounds urged in the motion for a new trial.</p> <p>4. —Same.</p> <p>It would seem that an allegation in the motion for new trial that “the court erred in its charge as to the measure of damages,” sufficiently raised the question of the error in allowing the matter of expenses for medicines to be considered by the jury.</p>

<p>1. —Administrator—Suit by—Proof of Authority to Sue.</p> <p>In an action by an administratrix, proof of the order of her appointment, and of the further order of the County Court continuing her administration, was sufficient evidence of her authority to institute and prosecute the action, and there being no answer under oath denying her legal capacity to sue, as required by article 264, clause 2, Revised Statutes, it was an immaterial matter to show that her official bond was insufficient in amount.</p> <p>2. —Practice on Appeal—Conflicting Evidence Case.</p> <p>The case being one of conflicting evidence, and there being sufficient evidence to sustain the verdict, the judgment is affirmed.</p>

<p>Carriers of Freight—Damage to Goods—Presumptions.</p> <p>A barrel containing chinaware was shipped to plaintiff over defendant’s line of railway as the terminal carrier, and was delivered to plaintiff by a transfer company. Upon opening the barrel some of the ware was found broken. There was no proof as to how or where the injury occurred. Held, that plaintiff was not entitled to recover against defendant, since, as the transfer company was also a common carrier, the presumption of law was that the injury occurred while the property was in its possession.</p>

<p>1. —Bill of Exceptions—Noting Exceptions in Record.</p> <p>Where the trial court overruled a motion to exclude certain evidence, and, in an entry in the record of its action on the motion, it was noted that an exception was taken to such action, this did not save the necessity of a bill of exceptions, duly allowed and approved by the court, in order to bring up such ruling on appeal, the entry of the court’s action on such motion not constituting any part of the record proper.</p> <p>2. —Evidence—Objections to Admissibility—School Land Lease.</p> <p>Where a lease contract offered in evidence was objected to on the ground of illegality, and the evidence relied on to show such illegality was conflicting, the court properly refused to exclude the contract.</p> <p>3. —School Land Lease—Award—Conclusiveness.</p> <p>Proof of an award of school land by the Land Commissioner makes a prima facie case of ownership in the one receiving the award sufficient to entitle him to recover until, by proper evidence, the Commissioner is shown to have exceeded his authority in making the award; and this rule is here applied with reference to the validity of a lease of school lands executed by the Commissioner.</p> <p>4. —Same—lease for Benefit of Another—Collusion.</p> <p>Where school land is leased from the State, the fact that the leasing is for the benefit of another, as well as for that of the lessee, does not invalidate the lease, although such interest of another would render void a purchase of the land from the State.</p> <p>5. —Same—Public Policy—Fraud.</p> <p>One who has aided in obtaining a lease of school land, which is violative of public policy, because designed for the purpose of keeping the land off the market, can not be allowed to profit by it by having the lease declared void because of its 'illegality, in order to let in an application of his own to purchase the land, made ahead of the application of another, who waited until the expiration of the lease before applying.</p>

<p>1. —Trespass to Try Title—Description of Land.</p> <p>Allegations in plaintiff’s petition in trespass to try title, that the premises sued for consisted of one hundred acres of land then occupied by the defendant, and on which is situated the mill and gin formerly owned by him, followed by a statement of the premises by which the tract was bounded, was sufficient, since the land could be identified by such description.</p> <p>2. —Same—Endorsement of Petition.</p> <p>An objection that plaintiff’s amended original petition, on which the case was tried, was not endorsed, “An action to try title as well as for damages,” as provided by statute, can not be raised by a general demurrer, nor be considered when raised for the first time on appeal.</p> <p>3. —Deed of Trust—Description of Land.</p> <p>There was a sufficient description of the land conveyed by a deed of trust where it was described as “one hundred acres of land situated in C. County, Texas, near the town of L., being a portion of the J. R. W. survey, and being the same premises now occupied by me”—the grantor.</p> <p>4. —Same—Variance.</p> <p>Although the land was, in fact, a part of the T. R. W. survey, instead of the J. R. W. survey, yet there was no variance where plaintiff’s petition alleged a mistake in such description, and the proof showed it, and the description, aside from the name of the survey, was sufficient to identify the land.</p> <p>5. —Evidence—Date—Account Book.</p> <p>Where a merchant testified from his personal knowledge that a debt originally due him on account of goods sold accrued at a stated period, and during the lifetime of defendant’s wife, it was immaterial that he did not produce his account books showing the sales and their dates.</p> <p>6. —Homestead—Mortgage by Single Man.</p> <p>A single man, who is a widower, residing with his minor children on the homestead, can mortgage it to secure a community debt incurred during the lifetime of the deceased wife, and a sale under the mortgage conveyed the title as against himself and the children.</p> <p>7. —Same—Separate Debt" Included.</p> <p>The fact that, along with the community debt of nearly $800, for which the mortgage on the homestead was given by the surviving husband, there was included a separate debt of his to the amount of $80, did not vitiate the sale under the mortgage.</p>

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

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

<p>Practice on Appeal—Writ of Error—Appeal—Motion to Consolidate—Time of Filing.</p> <p>Where a writ of error was sued out from the same judgment from which an appeal was prosecuted, a motion to consolidate the two causes, filed after the appeal was decided, comes too late; and the judgment being affirmed on appeal, both the writ of error and the motion to consolidate will be dismissed without prejudice to defendant in error’s right to pursue any remedy he may have on the supersedeas bond filed in the writ of error cause.</p>

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

<p>1.—Series of Notes—Assignment by Mortgagee—Priority of Liens.</p> <p>When a mortgagee assigns one or more of a series of notes, and retains the remainder, the assignee is entitled, to priority of lien as against the mortgagee, with respect to the note or notes transferred, without regard to the order in which the notes mature; but, as between two or more assignees, no such priority exists, their liens being concurrent.</p> <p>9.—Same—Purchaser at Receiver’s Sale—Assignee—Priority of Liens.</p> <p>The holders of one or more notes of a series, who acquired them by purchase from a mortgagee at receiver’s sale, did not receive them “in the ordinary and usual course of business,” and, in a controversy involving priority of liens between such purchasers and those holding other notes of the series, as assignees, they stand in the same attitude as would the mortgagee had he still been the owner of the notes.</p> <p>3.—Same—Builders’ and Mechanics’ Lien—Priority of Liens.</p> <p>A series of five promissory notes was secured by builders’ and mechanics’ lien, and two of them were assigned, for a valuable consideration and in the due course of trade, by the holder, and payment guaranteed by indorsement on the back of the notes. Held, that such assignee had a prior lien on the property, securing the indebtedness, as against those acquiring the remainder of the notes by purchase at receiver’s sale, after suit had been instituted thereon by the original holder, and with full knowledge of his indebtedness and of the assignee’s claim.</p>

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

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

<p>1.—Orders for Goods—Rescission of Contract.</p> <p>Orders made at different times were not parts of the same contract, a breach of a part of which would authorize a rescission of the whole.</p> <p>Z.—Same—Same—Goods Not Delivered.</p> <p>In an action on an account for goods delivered, and other orders filled but not delivered, an allegation that they were not delivered because defendant refused to accept them was not sustained, nor a recovery authorized by testimony of the officers of plaintiff that the goods were not delivered because the previous account had not been settled, and a letter from plaintiff, notifying defendant that all work on his orders was suspended until settlement of the other account.</p>

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

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

<p>1. —Liquor Dealer—Giving Liquor to Minor. ;</p> <p>In an action on a liquor dealer’s bond for giving, and permitting to be given, intoxicating liquor to a minor, which action was tried on special issues, and judgment rendered thereon for plaintiff, it was immaterial that there was no finding, and no testimony warranting such a finding, that defendants, or any agent, servant or employe of theirs, knew or consented to the giving of the liquor to the minor.</p> <p>2. —Same—Permitting a Giving of Liquor.</p> <p>Proof showing that minors entered a saloon, along with others, and that one of such others bought liquor at the bar and there treated the minors, who there drank the liquor, will sustain a finding that the liquor dealer permitted liquor to be given to the minors, and this whether or not he or his employes knew the boys were minors.</p> <p>3. —Same—Good Faith—Belief.</p> <p>A bona-fide belief on the part of the liquor dealer or his employe that the minor was a person of age would not serve to exempt the dealer and the sureties on his bond from the penalty prescribed for permitting liquor to be given to the minor, although, under the terms of the statute, it would have that effect in the case of a sale of liquor to the minor. - '</p> <p>4. —Same—Sale—Treating to Liquor.</p> <p>Where a third party bought the liquor at the bar, and “treated” the minors, it can not be held that this was a sale to the minors, or that such purchaser was acting in the purchase as their agent.</p>

<p>1.—Carrier of Passengers—Stamping Ticket for Return.</p> <p>Where a passenger duly presents a round-trip ticket to the stipulated agent at the terminal point to be stamped for return, and the agent refuses to stamp the ticket, the passenger has the right to return thereon notwithstanding such refusal.</p> <p>2. —Same—Rude Conduct to Lady Passenger—Mental Suffering.</p> <p>Evidence that, when the conductor called on plaintiff’s wife for her ticket, and she presented it to him, he rudely threw it in her lap, declaring it no good, and in the presence of other passengers denied the truth of her statement that she had presented it to the ticket agent at the terminal point for stamping, and that the conductor’s language and conduct very much humiliated her, was sufficient to warrant the court in submitting the issue of humiliation and mental suffering on the part of the wife, and of plaintiff’s right to recover therefor.</p> <p>3. —Same—Leading Question.</p> <p>Questions to plaintiff’s wife asking her whether or not the conduct of the conductor about the ticket (in throwing it back to her), and the language he used, preyed on her mind, and, if she was humiliated thereby, held to be leading, and the admission of her answers thereto, over objection, to constitute error.</p> <p>4. —Same—Error not Rendered Harmless.</p> <p>That plaintiff’s wife subsequently, in her testimony, and without further objection then made, repeated the language put in her mouth by the leading questions by saying that she was humiliated, and that the matter preyed on her mind, did not render harmless the error in permitting the leading questions and answers thereto, there being no other evidence in the case to the same effect.</p> <p>5. —Same—Excessiveness of Verdict not Complained of.</p> <p>The amount of the verdict for mental anguish appearing to be large, and the error in admitting the answers to the leading questions having a tendency to increase such allowance, it was immaterial that no assignment of error complained of the verdict as being excessive, since the court will look to the verdict in determining whether or not such an error was harmless.</p> <p>6. —Same—Mental Anguish.</p> <p>Anger is not ordinarily classed as mental suffering, and, unless arising from adequate cause, or of degree amounting to mental suffering, will not warrant a recovery of damages therefor. (Speer, Associate Justice, dissenting.)</p>

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

<p>1.—Officer—Court Stenographer—Term of Office.</p> <p>A court stenographer, appointed by a district judge under the Act of the Twenty-eighth Legislature (1903), for the purpose of taking down testimony, etc., although designated in the Act as an “officer,” is not an officer within the meaning of section 30, article 16, of the Constitution, which provides that “the duration of all offices not fixed by this Constitution shall never exceed two years,” since such stenographer’s duties are clerical and subject to approval, and he is invested with no sovereign function of government, and hence such Act is not unconstitutional in providing that he may hold his office at the discretion of the district judge.</p> <p>2.—County not Liable for Fees of, When.</p> <p>Under the Act of the Twenty-eighth Legislature a county, forming part of -a judicial district composed of several counties, is not liable for the pay of a court stenographer beyond the amount of the fund made up of the court stenographer fees ($3 in each case) which are taxed and collected as costs in cases in the District Court of such county.</p>

<p>1. —Carrier of Passengers—Degree of Care—Trolley Pole and Wires.</p> <p>The high degree of care required of a carrier of passengers, in this case an electric street-car company, extends to the matter of the arrangement of its wires overhead and the working of the trolley pole thereon, and in case of negligence in this respect, resulting in injury to a passenger, ordinary care is not the test to be applied.</p> <p>2. —Same—Intervening Act of Passenger—Fright.</p> <p>Where a trolley pole became entangled in the cross-wires overhead, and jerked down some of the posts, which fell upon the car, breaking in the roof, and a passenger, frightened thereby, in his flight from the car struck his head against the door facing and was injured, such act of flight can not be considered as voluntary, and does not exempt the carrier from liability.</p> <p>3. —Same—Contributory Negligence—Action Caused by Fright.</p> <p>Where a person is suddenly put in fear of death or serious bodily injury, it is not contributory negligence for him, in seeking to escape the danger, to fail to act with ordinary care and prudence.</p> <p>4. —Same—Pleading—Negligence not Alleged.</p> <p>Where the petition charged the servants operating the car with negligence as to its management, this did not warrant a charge authorizing the jury to consider as negligence the failure of the defendant company to provide an additional employe for the purpose of watching the trolley pole and keeping it in place.</p>

<p>Appeal from the District Court of Hamilton County. Tried below before Hon. 1ST. E. Lindsey.</p>

<p>1. —Railway—Demand for Cars—Penalty.</p> <p>Whether a railroad company was bound on demand to furnish oars for transportation of cattle to a point beyond a line of its road or not, where it did furnish the cars on such demand but was guilty merely of delay, it is liable to the penalty therefor.</p> <p>2. —Railway—Route—Written Contract.</p> <p>Whether a shipper, who had demanded of a railway company cars for his shipment routed over certain lines, was bound by a written contract which he was required to sign, and did sign under protest, at the time of shipment, routing same by other connections and over a longer transit, held under the evidence considered in this case to be a question of fact for the jury.</p> <p>3. —Opinion—Evidence—Time of Transportation.</p> <p>A qualified witness may express his opinion as to the usual time consumed by cattle trains in making the run between points stated in the evidence.</p> <p>4. —Reasonable Time—Question of Eact.</p> <p>The court may properly define to the jury what it meant by reasonable time, the question being one of fact for their determination under proper instructions.</p> <p>5. —negligence.</p> <p>The test of negligence is what a person of ordinary prudence would or would not do under the same or similar circumstances.</p> <p>6. —Charge—Satisfy.</p> <p>A charge requiring a defendant to satisfy the jury by his evidence was too strong.</p> <p>7. —Charge—Measure of Damages.</p> <p>The failure of the court to give the jury any rule by which to measure the damages, is more than a mere omission and constitutes reversible error.</p> <p>8. —Contract—Connecting Carriers—Damages.</p> <p>It was proper to so charge as to subject each of several connecting carriers to damages for the fault of the initial carrier in improper routing of the shipment, but not necessarily ground for reversal where the verdict appears to have allowed such damages only against the intitial carrier.</p>

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

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

<p>1. —Contract—Duress.</p> <p>The duress sufficient to avoid a contract may arise out of a threat against the .child of the party seeking to avoid it. See plea held to present such issue although general in its allegations and not using the term duress.</p> <p>2. —Contract—Public Policy—Agreement not to Prosecute.</p> <p>A contract in consideration of an agreement by the promisee not to prosecute for an offense against the penal laws of the State is contrary to public policy.</p> <p>3. —Illegal Contract—Executed or Executory.</p> <p>The fact that a conveyance of land was made on a consideration prohibited by public policy may be urged as a defense by the grantor to an action by the grantee to recover the land upon such conveyance, under which possession had never been surrendered. Hoeser v. Iiraeka, 29 Texas, 450; DeLeon v. Trevino, 49 Texas, 88, discussed.</p>

<p>Notice of Appeal—Amicus Curiae.</p> <p>A notice of appeal can not be given for one appealing merely by an amicus curiae, and appeal taken thereon will be dismissed.</p>

<p>1. —Corporation—Receiver—Venue.</p> <p>Revised Statutes, art. 1488, providing for the venue in an action for appointment of a receiver of a corporation which has been dissolved or is insolvent or has forfeited its corporate rights, does not apply to an action for the appointment of a receiver to take charge of mortgaged property during the pendency of a suit to foreclose; and such appointment may be made in a suit brought in a county in which a part of the mortgaged property is situated, though the principal office of the defendant corporation is in another county.</p> <p>2. —Foreign Corporation—Trust Company—Permit to do Business.</p> <p>Though a trust company incorporated in another State may sue to foreclose a mortgage on property in Texas purchased by it in such other State, or to recover land bought by it, without obtaining permit to do business in the State, a trust company can not assume in this State the position of an active trustee for the holders of securities, empowered to do certain things for their benefit and to receive a compensation therefor, without obtaining the permit to do business.</p> <p>3. —Cases Distinguished.</p> <p>Security Co. v. Panhandle National Bank, 93 Texas, 575; Lakeview Land Co. v. San Antonio Traction Co., 95 Texas, 252; Eskridge v. Louisville Trust Co., 69 S. W. Rep., 987, distinguished from the present case.</p> <p>4. —Foreign Trust Company—Right to Sue.</p> <p>A trust company incorporated in another State and authorized by the terms of the deed of trust to maintain suit for its foreclosure, may bring such action for the benefit of the bondholders whom it represents without obtaining permit to do business in the State, though the terms of the trust deed imposed upon it duties, not sought to be exercised in such suit, which it could not discharge without obtaining permission to do business within the State.</p>

<p>1. —Carrier of Passengers—Negligence—Injury to Passenger in Alighting at</p> <p>Station.</p> <p>A petition alleging negligence on the part of a railway in failing to stop its train at a station a sufficient length of time to permit plaintiff to alight in safety, held to state a cause of action, though the allegations show that the train was in motion when plaintiff attempted to alight.</p> <p>2. —Injury to Wife—Damages—Value of Services of Wife—Pleading.</p> <p>Where the action is for injuries to plaintiff’s wife, it is not necessary or proper to allege or prove the value of the services of the wife, it being within the province of the jury, judging from all the surrounding circumstances, to determine what amount shall be awarded as damages for such item.</p> <p>3. —Same—Parties—Waiver of Misjoinder.</p> <p>While the wife is not a necessary or proper party to an action by the husband for damages resulting from personal injuries to her, yet where no objection was made at the trial because of her joinder as plaintiff, and no prejudice is shown to have resulted therefrom to the defendant, the question of such misjoinder can not be raised on appeal.</p> <p>4. —Opinion Evidence—Stopping Train at Station.</p> <p>Testimony that in the opinion of the witness the train stopped long enough to allow all the passengers to alight at a station, was properly excluded where the witness was not shown to have been an expert on such matters.</p> <p>5. —Negligence—Alighting From Moving Train—Question for Jury.</p> <p>The act of alighting from a moving train is not negligence per se, but it is a question for the jury whether the conduct of plaintiff constituted negligence proximately contributing to the injury.</p> <p>6. —Personal Injuries—Vérdict,</p> <p>A verdict of $4,200 for injuries to plaintiff’s hip, knee and ankle rendering her unable to walk without the aid of crutches, and causing the muscles of the injured leg to waste away, such injuries being permanent, was not excessive.</p>

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

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

<p>1.—Negligence—Unsafe Premises—Master and Servant.</p> <p>It was negligence on the part of defendant to dig a hole in a pathway in its foundry used by its employes, without warning them of its existence, and plaintiff, who with another was carrying a ladle of molten metal without knowledge that the hole had been dug, could recover for injuries sustained in stepping into the hole and overturning the metal on himself.</p> <p>2. —Measure of Damages—Earning Capacity—Evidence.</p> <p>In an action for damages for personal injuries permanently impairing plaintiff’s earning capacity, testimony as to what he earned at different times and places and from different employers was competent.</p> <p>3. —Leading Question—Harmless Error.</p> <p>A question propounded a witness, though leading, held not to have prejudiced complainant, where it brought out only testimony which had previously been given.</p> <p>4. —New Trial—Newly Discovered Evidence—Stenographer’s Notes.</p> <p>Where a witness for appellant was sought to be impeached by testimony that he swore differently on a former trial of the case, the stenographic notes taken at the former trial were not newly discovered evidence which would require a new trial, it appearing that their existence was known during the progress of the trial and that an effort was made to have them produced but they could not be found and no application for postponement to obtain the presence of the stenographer having been made.</p> <p>5.—Charge—Assuming Facts.</p> <p>Charge upon plaintiff’s right to recover for injuries received by stepping into a hole in a path established by defendant for the use of its employes, held not objectionable as assuming that defendant had established the path for the use of its employes.</p> <p>6. —Same—Assumed Risk—Contributory Negligence.</p> <p>Charge upon assumed risk and contributory negligence held, to fully present the issues raised and to justify the refusal of special requested charges.</p> <p>7. —Brief—Assignments of Error—Propositions—Rules of Court.</p> <p>Under the rules of the Courts of Civil Appeals, propositions under one assignment of error will not be considered as propositions under another.</p> <p>8. —Master and Servant—Dangerous Premises—Duty to Warn Servant.</p> <p>Where the master dug a hole in a pathway habitually used by a servant in the discharge of his duty, it was incumbent upon the master to apprise the servant of such fact.</p> <p>9. —Same—Assumed Risk.</p> <p>The servant assumes such risks as arise from the employer’s manner of carrying on his business and the * character of instrumentalities adopted by him, but when an extraordinary risk is created through the acts of the master, the servant can not be held to have assumed it unless he knew or ought to have known of its existence.</p> <p>Í0.—Assumed Risk—Dangerous Premises.</p> <p>A servant does not assume the danger arising from the failure of the master to exercise reasonable care in providing a safe place in which to work, unless the danger is so obvious as to charge him with knowledge of its existence.</p> <p>11.—Same.</p> <p>Although plaintiff knew of and assumed the risk arising from digging holes, in which to set ladles, in thq sand floor of the foundry, outside of the regular gangways left for the movement of the workmen, he can not be held to have assumed the risk from holes dug in an unusual place in a gangway unless he was chargeable with knowledge of its existence.</p>

<p>1.—Injury at Crossing—Charge—Contributory Negligence—Discovered Peril.</p> <p>Charges instructing a verdict for defendant, if plaintiff’s negligence in failing to exercise ordinary care to discover the car which struck him caused or contributed to the accident, held properly refused because ignoring the issue raised of defendant’s failure, on discovering plaintiff’s perilous position, to use proper care to avoid the collision.</p> <p>¡2.—Assignment of Error—Requested Charge.</p> <p>The assignment of error in refusing to give a requested charge presenting affirmatively the defense of contributory negligence does not raise the question whether such charge, though erroneous in the form asked, was sufficient to call the court’s attention to the omission and require the giving of a proper charge on the subject.</p> <p>3.—Measure of Damages—Permanent Injuries—Evidence.</p> <p>Testimony of plaintiff’s mother that before the accident plaintiff was a bright boy, attended school regularly and worked hard' during vacation but since then he had not seemed like the same boy, was dull and did not understand or notice or pay attention and often complained of his head hurting him, was evidence of permanent injury warranting a charge allowing compensation for the probable effect and duration of the injury, if any, to his mind in the future, as an item of damages.</p>

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

<p>Practice in Court of Civil Appeals—Written Opinion.</p> <p>The Court of Civil Appeals will not file a written opinion in causes of which it has final jurisdiction and the judgment is affirmed, except in boundary cases and others in which a written opinion seems necessary.</p>

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

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

<p>1. —Homestead—Abandonment.</p> <p>Where A., after the death of his wife, married again and temporarily went to live with the second wife on her homestead until he could get her consent to remove to his own, having no intention to abandon his own homestead, it did not, by reason of such temporary removal, lose its homestead character.</p> <p>2. —Same—Two Homesteads—Husband’s Bight of Selection.</p> <p>The husband and wife did not have two homesteads, since the husband, being the head of the family, had the right to select its domicile, and the second wife’s property did not remain a homestead after the marriage.</p>

<p>1. —Foreign Corporations—Permit to Do Business—Pleading.</p> <p>It is only where a foreign corporation desires to do business in this State that it is required to obtain a permit here; and hence where a defendant, sued for the price of grain he had bought from a tenant on land owned by a foreign corporation, set up that he had paid the price' therefor to one who had obtained from the corporation an assignment of its prior right to such grain as rent in kind, it was not necessary for him to allege that such corporation had obtained a permit to do business in Texas, there being no allegation that it was doing business here.</p> <p>2. —Same—Doing Business.</p> <p>It seems that even if the foreign corporation was doing business in Texas without a permit, it could make such an assignment of a claim for rents so as to authorize suit or defense thereon by its assignee.</p>

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

<p>1. —Superior Legal Title—Descent—Conveyance—Recovery Back of Land Sold.</p> <p>Where a deed of land reserves a vendor’s lien to secure the purchase money the superior legal title remains in the vendor, and upon his deatli descends to his heirs, and they may, the purchase money remaining unpaid, convey such title to an assignee of the purchase money note, and the assignee may, in default of payment of the purchase money, recover the land from the vendee.</p> <p>2. —Same—Equitable Relief—Foreclosure of Lien.</p> <p>Where the suit is to recover the land or in the alternative to foreclose the vendor’s express lien, and for any reason it would be inequitable for the vendor, or those claiming through him, to recover the land, a court of equity will not permit him to do so, but will confine his recovery to a judgment for the unpaid purchase money, Avith foreclosure of the lien.</p> <p>3. —Same—Rescission—Waiver.</p> <p>To authorize a rescission of the sale by the vendor and a recovery back of the land he must not delay too long in insisting upon the payment of the purchase money as it falls due, or he Avill be considered as having waived the default. He must not treat the contract as still subsisting, or do any act which may be construed into its affirmance.</p> <p>4. —Same—Recovery of Land Denied.</p> <p>Where the holder of the purchase money notes more than six years after their maturity accepted renewal notes and also payments made thereon during three or four years folloAving, and sought to have such notes allowed as a claim against the vendee’s estate, and the land, which had become the homestead of the vendee, had been very largely enhanced in value by improA'ements placed thereon, and no notice of intention to rescind was manifested or given until the filing of the suit, about three years after the holder of the notes had acquired the legal title by quitclaim from the heirs of the vendor, there was an affirmance of the contract of sale, or such a state of facts as would render it unconscionable to permit a recovery of the land.</p> <p>5. —Same—Tender of Unpaid Purchase Money.'</p> <p>Where the amount of the unpaid purchase money was not and could not, from the information possessed by the defendant vendees, have been known to them, and in such suit they pleaded payment of the notes, but offered in the event any amount was found to be due to pay it within such time as the court should require, it was not indispensable that a tender of such amount should have been made in open court in order to defeat plaintiff’s recovery of the land.</p> <p>6. —Same—Estoppel—Resisting Payment of Rotes.</p> <p>Where the holder of the vendor’s lien notes sought in the administration of the estate of the vendee of the land sold to establish the notes as a claim against the estate and have the lien enforced, and the widow and children resisted on the ground that the notes had been paid and that the claim was not presented in due time, this did not estqp them from asserting in this action, brought by such holder, their right to pay off the purchase money debt and thus defeat plaintiff’s right to rescind and to recover the land by virtue of the superior legal title.</p> <p>7. —Same—Same.</p> <p>Nor were they so estopped by reason of the fact that, in an action brought by plaintiff in the District Court to establish the debt and forclose the lien, they objected on the ground that administration was pending on the estate, and plaintiff thereupon took a voluntary nonsuit.</p> <p>8. —Same—Payments by Decedent’s Estate.</p> <p>Where the land became the homestead of the vendee and was occupied as such by his widow and children after his death, and they turned over products of the land to the holder of the purchase money notes, who was the administrator of the vendee’s estate, with directions to apply the proceeds as payment on the notes, such proceeds were not assets of the estate, and the administrator’s unauthorized action in applying them to other claims against the estate did not defeat the right of the widow and children to have such proceeds credited on the notes, which had become the property of such administrator by gift after their maturity.</p> <p>9. —Assignment of Error—Statement Recessary in Briefs.</p> <p>An assignment of error will not be considered where it is not followed in preparing the briefs, by a statement of the record in explanation and support of the proposition asserted.</p> <p>10. —Same—Bill of Exceptions—Exclusion of Evidence.</p> <p>An assignment complaining of the exclusion of evidence will not be considered where the bill of exceptions taken to such exclusion is not approved by the trial judge.</p>

<p>1,—Negligence—Definition—Harmless Error.</p> <p>Charge held not to constitute reversible error, though giving inaccurate definitions of negligence and ordinary care.</p> <p>Í?.—Charge—Connecting Carriers—Loss on Other Lines.</p> <p>Instructions considered and held not to make the initial, carrier, who had limited his liability to loss upon his own lines, liable lor injuries by default of the connecting carriers, when such charge was construed in connection with various other instructions given.</p> <p>3. —Carrier—Delay—Evidence.</p> <p>Evidence considered and held to present sufficient proof that delay in the transportation of cattle by stoppages at various points upon the line was due to defendant’s negligence to warrant the submission of that issue.</p> <p>4. —Charge—Carriage of Live Stock—Incidental Injuries.</p> <p>Instruction considered and held to present the law relieving a carrier of live stock from injuries ordinarily incident to their transportation by rail, and rendering it unnecessary to give further requested instructions on the subject.</p> <p>5. —Carriage of Life Stock—Care Assumed by Shipper—Charge.</p> <p>Instructions relieving the carrier from damages caused by cattle getting down and being trampled during transportation, where the shipper had undertaken to care for them en route, held properly refused, because upon the weight of evidence and so far as correct being covered by other instructions given.</p>

<p>Venue—Personal Privilege—Residence Unknown.</p> <p>Defendant is not deprived of his right to be sued in the county of his residence, though plaintiff alleged that he was a transient person whose residence was unknown, where, upon plea of his personal privilege, the facts established showed that plaintiff was in possession of information from which he could have ascertained the county of defendant’s residence.</p>

<p>1. —Railway—Escape of Eire—Degree of Care.</p> <p>An instruction that it was the duty of the railway company, in an unusually dry season, etc., to use great care in operating its engines imposes a higher degree of care upon defendant than the law requires.</p> <p>2. —Same.</p> <p>A charge that it was the duty of a railway to keep its right of way free from combustible material, and that if it failed to discharge this duty and permitted fire to escape and be communicated to plaintiff’s land it was guilty of negligence, is erroneous, both as being on the weight of evidence, and as requiring of defendant a greater degree of care than was imposed upon it by law.</p> <p>3. —Eire—Contributory Negligence—Charge.</p> <p>A charge that plaintiff, complaining of the burning of his stacks by fire from a railway locomotive, had a right to use his property in the ordinary way and to stack his straw on his own land wherever his convenience might indicate without being guilty of contributory negligence, was erroneous in law and improperly relieved the plaintiff from the duty to exercise ordinary care for his own protection.</p> <p>4. —Same.</p> <p>Instruction holding plaintiff to the use of ordinary care in the matter of exposing combustible property by placing it in too close proximity to a railway track, held improperly refused.</p>

<p>1.—Trespass to Try Title—Pleading—Recovery by Part Owner.</p> <p>Plaintiffs in trespass to try title, suing to recover an entire league of land, and showing title to an undivided one-third interest, could recover the whole of such specific portions, not exceeding one-third, as have not been appropriated to others by conveyance of specific parts of the tract from their co-tenants.</p> <p>Í3.—Same—limitation.</p> <p>Where, in a suit to recover a league of land, plaintiffs showed title by descent to an undivided third thereof, but more than two-thirds of it had been specifically appropriated to others by conveyances from eotenants owning undivided interests, and the recovery of the excess in such conveyances over the two-thirds the cotenants were authorized to convey was barred by limitation, plaintiffs could recover only what remained, but were not limited to recovering an undivided third interest in what remained.</p>

<p>1. —Note—Failure of Consideration and of Title to Land—Pleading.</p> <p>In an action on a note given for the purchase price of land, the defendant’s plea of failure of consideration was sufficient where it alleged that the vendor represented that he had good title to the land when, in fact, he had none, and that defendant bought believing such representations to be true, and that he was without knowledge of their falsity.</p> <p>2. —Same—Offer to Return Land.</p> <p>The defendant having already paid the larger part of the purchase money, and erected permanent and valuable improvements on the land, and there being no effort on the part of plaintiff, an assignee of the note, to rescind the entire sale, it was not necessary for defendant to oiler to reconvey the land. Distinguishing Ogbum v. Whitlow, 80 Texas, 239, and other cases.</p> <p>3. —Same—Eviction Need not he Shown.</p> <p>In showing that the title to the land had failed, thus establishing a defense to the note, it was not necessary for defendant to show an actual eviction, it being sufficient to show an outstanding title, with danger of eviction.</p> <p>4. —Same—Relying on Representations—Record Title.</p> <p>Although the vendor was without record title to the land, yet the purchaser, without, searching the records, had the right to rely upon his representations that he had a good title.</p> <p>5. —Same—Innocent Purchaser of Note.</p> <p>Plaintiff’s claim that he was an innocent purchaser of the note before its maturity could not avail as a basis for excluding evidence to show failure of its consideration and of title to the land where defendant’s pleadings and evidence raised the issue of plaintiff’s ownership of the note and of his being a purchaser thereof without notice.</p> <p>6. —Same—Ownership of Note—Special Issue—Evidence.</p> <p>Although no witness testified specifically that the note was left by the payee with plaintiff for safe keeping only, yet a special finding by the jury to that effect was warranted by evidence tending to show that plaintiff’s possession of the note was not that of a purchaser before maturity, and for value, and that he, in fact, was not the real beneficial owner of the note.</p>

<p>Contract to Furnish Water—Breach.</p> <p>Plaintiff rented rice lands owned individually by one who was also president of defendant canal company, and who told plaintiff that he had a contract with the canal company for water for the ensuing year, and that plaintiff could arrange for the necessary water at the proper time. Accordingly plaintiff moved onto the land, and applied to the general manager of the company for the construction of a lateral and a contract for water, but was informed that the company would not construct the lateral, but that he could go ahead and plant his rice, and the company would later give him a contract for the necessary water. This he did, and, on his demand for a contract, was tendered one such as bad been tendered other tenants, which he refused. Held, that plaintiff had no cause of action for breach of a contract to furnish water, since he only had the promise of a contract, and this he refused when offered.</p>

<p>1. —Evidence—Relevancy—Absence of Witness.</p> <p>Where it was clearly made to appear that the testimony of a certain person would have been material in the case, it was not error for the trial court to exclude evidence offered to show that an effort had been made to take his deposition, the evidence so offered consisting of the interrogatories propounded and the certificate of the notary that the witness had refused to make and sign the answers.</p> <p>2. —Same—Presumption.</p> <p>Where a witness is equally available to both parties to a litigation, no presumption whatever is to be drawn from a failure to call the witness.</p> <p>3. —Same—Immateriality—Corroboration.</p> <p>The fact that there is a conflict between the witnesses as to an immaterial matter does not authorize corroborating proof in relation to such matter.</p> <p>4. —Same.</p> <p>Where plaintiff had made a written statement of his injuries to the railway company variant from his testimony at the trial, and had, while on the stand, explained the discrepancies to the jury, it was not error to exclude evidence that he “had interviewed the officials of the company and explained to them the true circumstances under which his written statement was made.”</p>

<p>1. —Live Stock Shipment—Measure of Damages—Market Value.</p> <p>Where horses were injured while en route, by reason of the car containing them catching fire, their market value at the point of destination, and not at the point where the injury occurred, was the test in determining the amount of the ■ damages.</p> <p>2. —Same—Burden of Proof.</p> <p>The fact that plaintiffs, the shippers, accompanied the horses on the train, did not change the rule which placed the burden of proof on the carrier to show that the fire was not due to its negligence, there being no proof that they assumed the duty of taking care of the horses. Texas & P. Ry. Co. v. Arnold, 16 Texas Civ. App., 74, distinguished.</p>

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

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

<p>Appeal from the Comity Court of San Saba. Tried below before Hon. W. A. Smith.</p>

<p>Appeal from the County Court of Bell. Tried below before Hon. G. M. Felts.</p>

<p>Appeal from the County Court of McCulloch. Tried below before Hon. Joe A. Adkins.</p>

<p>1. —Public land—Conflict in Surveys—Titled land—Constitution.</p> <p>Evidence considered, and held to show a conflict between the survey under which plaintiff claims and an earlier railroad survey, the title to certain sections of which defendants held, such conflict being conclusive against plaintiff’s right to recover, insofar as her claim conflicts with that of defendants, under the provisions of article 14, section 2, of the State Constitution, prohibiting the location of certificates upon any land titled or equitably owned under color of title from the State.</p> <p>2. —Same—Titled land—Alternate School Sections.</p> <p>The alternate sections set apart to the public free school fund were titled lands within the meaning of the Constitution.</p> <p>3. —Trespass to Try Title—Conflict of Surveys—Costs—Disclaimer.</p> <p>Where the action was trespass to try title to a survey, part of which was in conflict with a prior survey by virtue of which defendants claim, the taxation of costs against defendants, upon judgment going against them, will not be disturbed on reversal and rendition of judgment for defendants for the part of the land in conflict, where they did not disclaim as to so much of the land as was not specifically claimed by them.</p>

<p>1.—Judgment on Note—Appeal—Damages for Delay.</p> <p>In an action on a note, it appeared that it was given for a valuable consideration, without fraud or misrepresentation on the part of the payee, and was indorsed to plaintiffs as collateral security for a debt of less amount, the remainder being assigned by the indorser to intervener to secure an indebtedness due him. Judgment was for plaintiffs, against the maker and indorser, for the amount of their note, with interest and attorney fees, and for intervener for the remainder, and execution was awarded each separately. The maker furnished supersedeas bond, and, on the appeal, the validity of plaintiff’s judgment was not questioned, but the only objections urged were to the judgment in favor of intervener and the refusal to render judgment in favor of the maker against the indorser (payee) on his cross-plea ofr fraud in the procurement. Held, that the joinder of plaintiffs in the appeal was merely to delay them in the collection of their judgment, for which, judgment being affirmed, ten percent damages as to the portion in favor of plaintiffs will "be added.</p> <p>/</p> <p>55.—Assignments of Error—Rules of Court.</p> <p>Under rules 24 and 25 for Courts of Civil Appeals, assignments of error objecting that the judgment allowed a recovery in favor of an intervener, in an action on a note, for the amount of his claim, arid refused a recovery in favor of the maker against the payee, who indorsed it to plaintiffs, without more specifically showing wherein there was error, are too general to be considered.</p>

<p>1. —Charge—Undue Prominence.</p> <p>Where both parties asked special instructions explanatory of an issue presented in the main charge, and both were given, the appellant can not complain that undue prominence by repetition was given to the issue by the giving of the charge requested by appellee.</p> <p>2. —Same—Invited Error.</p> <p>A party can not complain of error in a charge given at its request.</p> <p>3. —Assumed Bisk—Pleading Baising Issue.</p> <p>Allegations in defendant’s answer that plaintiff knew, at the time he entered defendant’s service, and at the time of the accident, that the great and unusual rainfall which had prevailed had rendered the black, waxy soil of the roadbed soft, and that the road was liable to get out of line, were sufficient to support a charge upon assumed risks of which he had knowledge.</p> <p>4. —Same—Issue not Baised by Evidence—Harmless Error.</p> <p>Though possibly the evidence was not sufficient to raise the issue of assumption of known risks, or of risks ordinarily incident to the employment, and to justify a charge thereon, a verdict for defendant, found under an instruction on assumed risk, which told the jury to find for defendant only in the event the adcident was not the result of any negligence on the part of defendant, will not be disturbed, since it could have been found only in the event defendant was not guilty of negligence, in which case a verdict in its favor was inevitable.</p> <p>5.—Pleading and Evidence—Negligence.</p> <p>There was no error in excluding evidence by which, as explained by the bill of exceptions, it was sought to show that where there are bad places in the track it is the duty of the railway company to notify its employes, and that those operating the train on which plaintiff was employed as brakeman, when "injured, were not notified of the dangerous condition of the track, where the petition set forth specifically the grounds of negligence relied on, and this is not one of them.</p>

<p>1. —Practice on Appeal—Exception to Pleading.</p> <p>Where a plea of privilege to be sued in the county of his residence was filed by defendant and duly excepted to by plaintiff, and afterwards another plea was filed, setting out practically the same things as were embodied in the former one, but was not excepted to, it can not be urged on appeal that the second plea was filed too late.</p> <p>2. —Plea of Privilege—Continuance not a Waiver.</p> <p>The continuance of a case in order that the question of fraud, raised by a plea of privilege, might be tried by a jury on the trial of the cause on its merits, was not a waiver of the plea of privilege, it being specially provided in the order granting the continuance that the plea should not be prejudiced thereby.</p> <p>3. —Breach of Contract—Assignment of Cause—Plea of Privilege—Question for Jury.</p> <p>One of the parties to a contract alleged to have been breached assigned his cause of action to plaintiff, alleging the consideration to be the cancellation of a note of his for $1,000, held by plaintiff, and guaranteed plaintiff at least $1,000 on the claim, but admitting also that he made the assignment in order that he might be made party defendant, as guarantor, to a suit by the assignee on the contract, and the suit be brought in the county of his (the assignor’s) residence, for the reason that he did not believe he could get judgment in the county of the residence of the party breaching the contract. Such latter party interposed a plea of privilege to be sued in the county of his residence, raising the issue of fraud upon the jurisdiction in the assignment of the cause of action. Held, that the question of fraud as to the jurisdiction was one for the jury to decide, and it was error for the court to instruct for defendant on his plea of privilege.</p> <p>4. —Damages for Breach of Contract—Assignment of Part of Damages—Consideration—Parties.</p> <p>The fact that the whole of the damages that might be obtained on account of the breach of the contract were not transferred by the assignment, but only enough to satisfy the debt of the assignor, would not prevent the assignee from instituting suit against both the maker and the guarantor.</p> <p>5. —Assignment of Claim—Ratification.</p> <p>The fact that the transfer of the contract1 in satisfaction of the note was made by an attorney, without knowledge thereof on the part of plaintiff, was immaterial where he afterwards accepted the benefits of the assignment and authorized suit on the contract.</p> <p>6. —Same—J urisdiction—Fraud—Evidence.</p> <p>Where a claim arising from breach of a contract was assigned in consideration of the cancellation of a note of the assignor’s, and it was alleged in a suit by the assignee upon the contract that the assignment was a fraud upon the jurisdiction, testimony of the assignee as to how the assignor became indebted to him was competent.</p>

<p>1. —Suit Against County—Custody of Papers—Notice to Produce—Secondary Evidence.</p> <p>Where the action was one by an attorney to recover from a county for legal services rendered, plaintiff could testify as to the contents of a written claim for the amount due, presented by him to the Commissioners’ Court, without giving defendant notice to produce, since it was charged with the custody of the original paper, and the nature of the suit was such as to give defendant notice that it would be necessary for defendant to prove the contents of the paper.</p> <p>2. —Action for Attorney Pees—Evidence—Written Instrument.</p> <p>The order of the Commissioners’ Court authorizing and instructing plaintiff to act as counsel in the case against the county wherein the services, for which recovery is sought, were rendered, being plain and unambiguous, there was no error in refusing to permit the county judge to testify that the order was properly entered, and to explain its meaning.</p> <p>. 3.—Assignment of Error—Admission of Evidence.</p> <p>Where a bill of exceptions, objecting to the admission of testimony as to the contents of “certain court papers,” fails to show what the papers were, it can not be held that complainant was prejudiced by its admission.</p> <p>4. —Discretion of Court—Be-cross-examination of Witness.</p> <p>It is within the discretion of the court to permit the re-cross-examination of a witness.</p> <p>5. —Contract with County—Commissioners’ Court.</p> <p>A contract between a county and an individual, to be binding on the former, > must be made through the Commissioners’ Court.</p> <p>6. —Witness—Unexpected Testimony.</p> <p>Where the testimony of a witness is not what the party offering it expected, and the desired proof can be shown by other witnesses not present, this may be urged as ground for postponement of trial, but if the party does not do so, and takes chances on the verdict, a reversal can not be had because of such matter.</p>

<p>1. —Injury to Wife—Measure of Damages—Loss of Time—Capacity to Labor.</p> <p>In an action to recover for personal injuries sustained by plaintiff’s wife, a charge was erroneous which allowed compensation for loss of time and impairment of her capacity to labor in the future, without evidence as to the value of the time lost, and some evidence to show the condition of life, health, habit as to doing household work, and the value of the services of a wife in a home.</p> <p>2. —Railway Crossings—Restoring to Former Condition—Maintenance—Degree of Care.</p> <p>It is the absolute duty of a railway to restore the crossing of a public highway disturbed by the construction of its road to its former condition, or to such condition as not to unnecessarily impair its usefulness, but in maintaining the crossing it is required to use only reasonable care.</p> <p>3. —Injury at Crossing—Proximate Cause.</p> <p>Where the action was for injuries sustained by plaintiff’s wife by the overturning of her buggy, due to the defective condition of defendant’s track at a public crossing, and the evidence tended to show that the accident was proximately caused by the horse becoming frightened and running away, defendant was entitled to have this defense affirmatively submitted to the jury.</p>

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

<p>1. —Cattle Shipment—Change of Destination—Measure of Damages.</p> <p>Where a contract was made for the shipment of cattle by rail to G., and while they were en route their destination was changed to W. because of quarantine restrictions, the measure of damages for injuries occurring in their transportation was the difference between their market value at G. (not W.) and what would have been their market value had they reached G. in proper condition.</p> <p>2. —Same—Harmless Error.</p> <p>The evidence showing that G. was a better market for cattle than W., and that plaintiff’s damages, if estimated by the market at the former point, would have been still larger, error in the charge, in instructing that the damages were to be estimated on the value of the cattle at W., was harmless as to the defendant.</p>

<p>1. —Statute of Frauds—Default of Another—Independent Promise.</p> <p>Plaintiff contracted to sell certain lands to defendant’s brother, and the brother put up $300 to be forfeited if he failed to take and pay for the lands by a stated date. He so failed to do, and defendant, being desirous for his brother to buy the land, and thereby become his neighbor, agreed with plaintiff that if the latter would further extend the time, and the brother did not then complete the purchase, he, defendant, would on his own account pay a forfeit of $500. Held, that this was not within the statute of frauds as a promise to answer for the debt or default of another, but was an original and independent promise, upon which defendant was liable.</p> <p>2. —Same—Consideration.</p> <p>The disadvantage to plaintiff in extending the time, and in declining, at the instance of defendant, another desirable offer for the land then pending, was a sufficient consideration for the promise, aside from the advantage to defendant of having his brother for a neighbor.</p>

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

<p>1.—Continuance—Diligence.</p> <p>Where defendant, by an examination of the records of the surveyor’s office, could have ascertained the name of the person who surveyed the land in suit, and by inquiry made of his relatives in the county could have learned his residence, but neglected to do so for more than three years after the filing of the suit, no such diligence was shown as would warrant a continuance to obtain the surveyor’s testimony by deposition.</p> <p>• 2.—Same.</p> <p>Nor was the requisite diligence shown with respect to a witness living in the county, for whom a subpoena, which was not served, was issued three years after suit filed, and only twelve days before the trial, and the fees of the witness had not been tendered.</p> <p>3.—Judgment—Purchaser Pendente Lite.</p> <p>Where defendant bought land at a sale under a judgment against EL, for taxes, and with notice of the pendency of a suit by plaintiff against El. for the land, he was a purchaser pendente lite, and was concluded by the judgment rendered in such suit.</p>

<p>1. —Carrier of Passengers—Pullman Conductor—Ejecting Trespasser.</p> <p>The rule that the conductor of a Pullman sleeping car, forming part of a railroad company’s train, is to be regarded, in his dealings with its passengers, as its servant, and making it responsible for his acts as if he were directly employed by it, does not apply with reference to his conduct towards a trespasser on the train and car.</p> <p>2. —Same—Trespasser.</p> <p>Where a boy got upon the rear end of a Pullman car attached to a train, with no intention to become a passenger, but intending to ride without paying, he was a trespasser, and for his ejection by the Pullman conductor, who was not employed by the railway company, the latter was not liable, since the relation of master and servant did not exist between it and such conductor, and its only duty towards the trespasser, that of avoiding unnecessary injury to him, it did not owe in its character of a common carrier.</p> <p>4.—Same—Joint Tort Feasors—Compromise Settlement.</p> <p>Where plaintiff sued the railway company and the Pullman car company as joint tort feasors, for personal injury resulting from his ejection from the train, a settlement made by Mm with the Pullman company of all matters in controversy between him and that company operated to release the railway company, although the judgment giving effect to the settlement ordered that the casé should stand for trial as between plaintiff and the railway company.</p>

<p>Error from the District Court of Travis County. Tried below before Hon. Geo. Calhoun.</p>

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

<p>1. —Carrier—Live Stock—Measure of Damages.</p> <p>The measure of damages for injury to live stock, by delay in furnishing cars for their transportation, was the difference between market value at point of destination, in the condition they were, from that in which they would, but for such delay, have been delivered, though they were shipped there to be fed, not to be marketed.</p> <p>2. —Railway—Contract to Furnish Cars.</p> <p>Í A railway company may bind itself by a contract to furnish cars for the shipment of cattle at a point not on its line, but on that of another road, and be held for damages for failure to comply. >,</p> <p>3. —Contract—Authority of Agent.</p> <p>Evidence considered and held to show authority of a live stock agent to contract for a railway to furnish cars for a shipment of cattle at a point not on its line.</p>

<p>Appeal from the District Court of Galveston. Tried below before Hon. Frank M. Spencer.</p>

<p>1. —Deed of Trust—Rural and Urban Homesteads—Question for Jury.</p> <p>Where the action was trespass to try title to two- tracts of land situated in an unincorporated town, and on which a deed of trust was held by defendant, the questions whether both constituted an urban homestead, or whether one alone was a rural homestead, rendering the deed of trust valid as to the other, were issues for the jury, and it was error for the court to instruct a verdict for defendant.</p> <p>2. —Same—Same—Temporary Abandonment.</p> <p>If one tract was rural, and the homestead was established thereon, or if both tracts were urban, and were being used as a homestead at the time the deed of trust was given, no temporary abandonment could affect the homestead right.</p> <p>3. —Same—Same—Abandonment.</p> <p>If one tract was rural, and the deed of trust was executed after the maker moved therefrom with intent to abandon it, and before any homestead rights were acquired in the urban lot, then both tracts would be subject to the lien created by the deed of trust.</p> <p>4. —Same—Same—Same.</p> <p>If, at the time the deed of trust was executed, one tract constituted the rural homestead, but was afterwards abandoned and the other made the urban homestead, the latter would be bound by the deed of trust and the former exempt.</p> <p>5. —Estates of Decedents—Homestead—Orders of Court—Collateral Attack.</p> <p>Where a tract was homestead at the time a deed of trust was given thereon, and not subject to the lien thus created, but afterwards lost its homestead character and became part of the assets of the estate, orders of the County Court in probating claims, and for sale of the land, could not be attacked in a collateral proceeding.</p> <p>6. —Same—Administration of Homestead.</p> <p>The homestead is not subject to administration by the Probate Court.</p>

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

<p>1. —Administrator’s Deed—Recitals.</p> <p>An administrator’s deed, made under order of the court, is, by the statute, prima facie evidence that all requirements of the law have been complied with in obtaining it. Rev. Stats., arts. 2152, 2153.</p> <p>2. —Same—Ancient Instrument.</p> <p>Such a deed, when more than thirty years old, proves itself and the recitals contained therein.</p> <p>3. —Same—Presumptions—Evidence.</p> <p>Evidence held insufficient to rebut the presumption that the Probate Court had sufficient evidence before it to warrant its rendition of a judgment directing an administrator to execute a deed in pursuance of a bond for title made by his decedent.</p> <p>4. —County Court—Probate Jurisdiction—Collateral Attack.</p> <p>The County Court sitting in probate is a court of general jurisdiction within the limits prescribed by law, and its judgments in probate matters import absolute verity on collateral attack unless they show want of jurisdiction on their face.</p> <p>5. —Partition—Notice—Estoppel.</p> <p>. Where a trustee invested with the legal title executed deeds in severalty to the beneficiaries, thereby partitioning the land among them, and they acquiesced therein and took possession of the portions so allotted them, one who, after the record of such deeds, purchased the interest of one of the beneficiaries, took with notice, and through the estoppel of his grantor, was bound by the partition so made.</p>

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

<p>1. —Judicial Districts—Constitutional Law.</p> <p>The Act of the Twenty-eighth Legislature, approved March 24, 1903, creating the Sixty-second Judicial District of Texas, held constitutional. • Following ruling of the Supreme Court in Railway Co. v. Hall, 98 Texas, 480, 85 S. W. Rep., 786.</p> <p>2. —Railroads—Maintaining Depot—Consideration of Deed—Damages.</p> <p>Where a railroad company obtained a deed to it of land, the only consideration for which was, as recited in the deed, the increased value of the grantor’s property by the establishment of a depot and side-tracks on the land conveyed, the company was required not only to provide a depot building, but to keep an agent there, and for its failure to do so—the maintenance of a station there proving unprofitable—it was responsible to the grantor in damages.</p>

<p>1. —Judgment Against Minor—Setting Aside After Majority—Ratification— Limitations.</p> <p>Where a minor grantee was the defendant in a suit to set aside a deed, and was duly served with process, and a guardian ad litem appointed for him made a compromise to which he assented and received benefits therefrom, the statute of four years did not apply to an action brought by him after attaining majority to set aside the judgment entered on the compromise, but it was a question for the jury as to whether he had used reasonable diligence in bringing the suit after reaching majority.</p> <p>2. —Same—Diligence—Evidence.</p> <p>Upon the issue of whether plaintiff had used such diligence, evidence was admissible to show that, after reaching majority, he lived near the land, and .knew that the party who recovered against him was improving it,</p> <p>3. —Same—Delivery of Deed—Intention—Charge.</p> <p>There being evidence tending to show, as pleaded by defendant, that the grantor, in the deed to plaintiff, did not intend that her act in recording the deed should constitute a delivery of it, this required the court to give, upon request therefor, a charge affirmatively presenting such defense as it was shown by the evidence.</p> <p>4. —Same—Grounds for Setting Aside—Fraud.</p> <p>A minor against whom a judgment is rendered can, after attaining majority, have it set aside by showing fraud or collusion used in procuring its rendition, or that he had a good defense which was not presented, and it devolves on him to show that the judgment was fraudulent or inequitable.</p> <p>5. —Same.</p> <p>In such action to set aside a judgment a charge that, if the agent of the plaintiff in the former suit make an agreement with the guardian ad litem of the minor defendant therein (plaintiff in this suit), and by reason thereof the guardian failed to present the defense of the minor, and, without contest, allowed a recovery against him, then the judgment rendered thereon “would not be rendered after a fair and just investigation,” was misleading and erroneous, since such judgment would not be vitiated unless it was further shown that the minor had a good defense which was not presented, and the charge, as worded, conveyed the idea that fraud or collusion was perpetrated, and that no judgment would be binding on a minor unless all the evidence practicable was heard. The evidence not heard must have been such as would have changed the result.</p> <p>6. —Deed—Delivery—Recording.</p> <p>The recording of a deed is not necessarily a delivery, but a circumstance ' which may be looked to in determining whether or not there has been a delivery.</p>

<p>1. —School Land—Settlement—Validating Act—Additional Land.</p> <p>Where L. was not an actual settler on his home section at the time of his application to purchase additional lands, but did make sufficient settlement upon the land within six months thereafter, and prior to January 1, 1899, the curative Act of 1899, commonly known as the Decker "Healing Act, made valid the award to him of the additonal lands, as well as of the home section. Spence v. Mitchell, 96 Texas, 43 (Spence v. Dawson, 70 S. W. Rep., 73), distinguished.</p> <p>2. —Same—Actual Settlement—Sufficiency of.</p> <p>Evidence of actual settlement upon school land by a single man, who worked elsewhere during the time, considered, and held sufficient to support a finding Of actual settlement,</p> <p>3. —Same—Sale to Minor—Validation.</p> <p>Even if the sale of the school land to L. was void because he was at the time a minor, it was validated by the Act of 1899 (Gen. Laws 1899, p. 259, eh. 150), and the further fact that L., after reaching his majority, evidenced the affirmance of his purchase by continuing to occupy the land. Watson v. White, 26 Texas Civ. App., 442, and Johnson v. Bibb, 32 Texas Civ. App., 471, followed.</p> <p>4. —Same—Three Years’ Occupancy—Death of Settler.</p> <p>Where an actual settler upon school land dies before the completion of the three years’ term of occupancy, it seems that, after the expiration of three years from the date of his settlement, the question of the requisite settlement and occupancy of the land can not be raised by a subsequent applicant to purchase it from the State, the case then being the same as if a certificate of three years’ occupancy had been duly issued by the Land Commissioner, but on this point a majority of the court express no opinion.</p>

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

<p>Action for Personal Injuries—Trespasser—Licensee.</p> <p>Plaintiff was employed to work in defendant’s bottling department under the direction and control of the foreman thereof, and was transferred by such foreman to another and different department under control of a different foreman, where he received the injuries for which damages were sought. Held, that plaintiff knew, or was charged with knowledge that the foreman was without authority to transfer him, and could not recover, he being merely a trespasser or licensee in the department where he was injured.</p>

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

<p>1. —Laws of Another State—Evidence.</p> <p>A pamphlet purporting to be .the insurance laws of Minnesota, and to have been printed by the “Pioneer Printing Company, State Printers,” did not purport to have been printed' by authority of that State, and hence was not, under the Texas Statutes, admissible in evidence to prove the law of Minnesota.</p> <p>2. —Same—Harmless Error.</p> <p>Error in admitting in evidence the laws of another State, and in charging thereon, was harmless where the specific findings of the jury showed, that they were not influenced thereby.</p> <p>3. —Insurance—Compromise of Death Claim—Consideration—Fraud.</p> <p>Where an agent of the insurer, on a contention that the policy, by reason of a breach of the warranties therein, was void, which contention was not made in good faith, or in the belief that it was well founded, or presented a doubtful question, effected a settlement with the beneficiary in a life policy for an amount less than was due under its terms, there was no consideration for the relinquishment of the unpaid balance, and the beneficiary was not bound by the settlement.</p>

<p>1. —Railroads—Venue—Connecting Carriers.</p> <p>Where suit against several railroads for damages to freight, occurring in a through shipment, is brought in a county through which only one of the roads extends, the fact that, on the trial, judgment is rendered in favor of such latter road does not of itself operate to defeat the jurisdiction as to another road against which judgment is rendered, and does not establish that the road so held not liable was fraudulently joined in the suit for the purpose of giving jurisdiction over the others.</p> <p>2. —Same—Jurisdiction—Plea of Privilege.</p> <p>In order to defeat the jurisdiction over the other roads there must be both pleading and proof that the road adjudged not liable was fraudulently joined in the suit for the sole purpose of giving jurisdiction over the other defendants.</p> <p>3. —Joint Liability—Pleading and Judgment.</p> <p>In such an action, brought under the Act of May 20, 1899, it is no objection to the judgment against one of the roads that plaintiff’s petition did not allege the precise amount of damages done by each of the carriers engaged in the transportation.</p> <p>4. —Evidence—Weight of Cattle—Market Sales.</p> <p>In an action for damages to cattle shipped to market and sold there, proof of the weights'at which they were sold may be made by showing their weights as entered up in the book of sales by the bookkeeper of the commission house that sold the cattle, without producing the man who weighed the cattle or the slips of paper on which the weights were endorsed by him and from which such bookkeeper entered up the weights.</p> <p>5. —Motion for New Trial—Error on Appeal—Waiver.</p> <p>Where a party himself requests the court to overrule his motion for a new trial, and this is accordingly done, he is not entitled to urge on appeal any ground of error necessary to be presented in a motion for new trial.</p>

<p>Venue—Connecting Lines of Railroads.</p> <p>The Act of 1899, prescribing the venue of suits against railroad corporations (Gen. Laws 1899, p. 214), does not authorize a suit for damages occurring to freight on a through shipment to be brought against a part of the connecting lines involved in a county through which only one of the lines extends, where such latter line is not made a party defendant, -and no liability is claimed against it.</p>

<p>Negligence—Dangerous Machinery—Injury to Child.</p> <p>An owner of machinery attractive to children, rightfully engaged in moving it through the streets of a city, is not liable for injury to a child of seven years who, in sport, suddenly and unexpectedly ran in between the moving sections thereof, after those in charge of the machinery had repeatedly warned him to keep away from it.</p>

<p>Appeal from the District Court of Hill. Tried below before Hon. Nelson Phillips, special judge.</p>

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

<p>Appeal from the District Court of Robertson County. Tried below before Hon. J. 0. Scott.</p>

<p>Appeal from the District Court of Williamson County. Tried below before Hon. V. L. Brooks.</p>

<p>1. —Action for Death—Charge—Assuming Controverted Fact.</p> <p>Where, in an action for injury causing death, there was evidence to the effect that the deceased was lying drunk on the track at the time he was struck by the car, it was not error to refuse a requested charge which assumed that he was struck while attempting to cross the track.</p> <p>2. —Same—Discovered Peril.</p> <p>The requested charge was also erroneous in instructing that the motorman was guilty of negligence if, by ordinary care, he could have discovered deceased in time to have avoided striking him, since, if deceased was lying on the track, defendant would be guilty of negligence only for failure to use proper diligence to prevent injury to him after he was discovered there.</p> <p>3. —Same—Harmless Error.</p> <p>Where the evidence was undisputed that the motorman did everything in his power to avoid striking the deceased after seeing him lying on the track, and the charge as a whole was correct, error in instructing that running at less than fifteen miles an hour was not negligence was harmless as to the plaintiff.</p>

<p>Appeal from the County Court of Midland. Tried below before Hon. L. M. Murphy.</p>

<p>1. —Railroads—Safety of Steps of Freight Caboose.</p> <p>Evidence considered, and held to show that steps of the kind used on a freight-train caboose, known as the “Dinkey caboose,” are, when not out of repair, reasonably safe for the use of railroad employes.</p> <p>2. —Same—Assumed Risk.</p> <p>. Where a railroad employe of many years’ experience fell at night from the steps of a “Dinkey caboose,” which were in good condition, and was injured by the fall, such result must be held as either an accident caused by Ms own negligence or as a result within the assumed risks of his employment.</p> <p>3. —Same—Ordinary Care by Employe.</p> <p>If the employe did not know that the caboose on which he was riding was a “Dinkey caboose,” with steps constructed differently from the old-style caboose, he should, in the use of ordinary care, and since he knew that the “Dinkey caboose” was more or less' in use on that road, have ascertained the character of the step before going upon it.</p>

<p>Appeal from the County Court of Johnson County. Tried below before Hon. J. D. Goldsmith.</p>

<p>Wife’s Separate Property—Contract—Verdict—Judgment.</p> <p>In a suit against husband and wife upon a contract alleged to be for the benefit of her separate property, a general verdict for a money recovery in favor of plaintiff is sufficient to authorize judgment and execution to be satisfied out of the wife’s separate property. '</p>

<p>1.—Election—Vacancy—Term of Office.</p> <p>One appointed by the Governor to fill the vacancy caused by the death of a district judge, and elected to the same position at the first general election following, held office by virtue of such election only till the expiration of the term of the deceased judge.</p>

<p>1. —Carrier of Live Stock—Delay—Strikes and Mohs.</p> <p>Instructions held to correctly present the issues in an action for damages to live stock by delay in transportation, sought to be excused by defendant because occasioned by interference with the operation of its trains by strikers and mobs.</p> <p>2. —Same—Burden of Proof.</p> <p>The burden was on plaintiff to prove that the delay in the transportation of his cattle to market by the carrier was negligent.</p> <p>3. —Carrier—Delay—Strike—Asking Protection—Charge.</p> <p>The carrier is held only to reasonable diligence in attempting to forward the transportation of property delayed by mobs of strikers, and it was proper, having so charged, to refuse a requested instruction that it was required to call on the civil and military authorities to quell the mob.</p> <p>4. —Carrier—Receipt of Goods During Strike.</p> <p>A charge holding a railway liable for failing to refuse cattle tendered it for transportation because of a strike impeding the operation of its line, held properly refused, because unwarranted by the state of the evidence, and not the proximate cause of the damages by delay in transportation.</p> <p>5. —Argument of Counsel.</p> <p>The expression “gentle cutthroats,” used by counsel for a railway in reference to witnesses for plaintiff, who had been engaged in a strike, held, not to be taken literally, nor cause for reversal.</p> <p>6. —Evidence—Personal Knowledge.</p> <p>The evidence of a witness was properly excluded where based not on personal recollection, but on the contents of books kept at stockyards.</p> <p>7. —Contents of Books—Certificates.</p> <p>Certificates of facts shown by stockyards books are not admissible in place of evidence of the contents of the books.</p> <p>8. —Evidence—Notice—Negligence.</p> <p>The fact that the superintendent of terminals at St. Louis notified the railway transporting cattle to market not to attempt delivery to the stockyards on account of the strike, preventing the operation of such terminals, was admissible in evidence on the issue of the carrier’s negligence in failing to forward the cattle to that point.</p> <p>9. —Practice on Appeal—Demurrer.</p> <p>It must appear from the record that a special exception of defendant was acted on and sustained in Order for error in sustaining it to be considered on appeal.</p>

<p>1. —Appeal—Jurisdiction—Amount.</p> <p>On appeal from Justice Court, the plaintiff can not, by amendment, increase his claim to an amount beyond the jurisdiction of the court from Avhieh the appeal was taken. By so doing he deprives the Appellate Court of jurisdiction.</p> <p>2. —Amount in Controversy—Damages—Interest.</p> <p>In an action to recover for damages to a shipment of vegetables, interest on the amount of the original damage is allowed as damages, and is included in the amount in controversy by which jurisdiction is determined.</p>

<p>1. —Vendor’s lien—Failure of Title—Burden of Proof.</p> <p>Where failure of title was pleaded in defense to a suit on notes given on sale of a preemption survey of land, which the "plea alleged was property of the State school fund, and had since been sold by the State as such, the burden was on defendants to prove the preemption claim invalid, and this was not met by showing that several lawyers had so advised them, or that the State had treated and sold it as school land.</p> <p>2. —Admission—Agreement Construed.</p> <p>An agreement that the State had recognized and sold certain land as belonging to the State school fund is not to be taken as an admission that it was such, or that a previous survey of same on a preemption claim was invalid.</p> <p>3. —Vendor and Vendee—Defective Title.</p> <p>One buying land, with knowledge of the state of the title, can not resist the payment of purchase money notes on account of failure of the title, whether his deed is quitclaim or warranty, except in eases falling within the rule announced as to attempted sales of land belonging to the State by private parties. Lamb v. James, 87 Texas, 485; Rayner Cattle Co. v. Bedford, 91 Texas, 642.</p> <p>4. —Vendor and Vendee—Sale in Gross—Partial Failure of Title.</p> <p>In the opinion of Justice Key, where two separate tracts are sold in gross, and not by the acre, failure of title to one of them is an equitable defense, requiring the party making it to restore possession, as well as tender his deed for cancellation.</p>

<p>Error from the District Court of Hays County. Tried below before Hon. L. W. Moore.</p>

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

<p>1. —Parties—Silent Partner.</p> <p>In an action by partners to recover a firm debt, it is not necessary that a silent partner should be joined as plaintiff, since he is concluded by the judgment.</p> <p>2. —Admissions—Pleadings—Evidence.</p> <p>Where the plaintiff put the defendant’s pleadings in evidence as admissions, it was for the jury to pass upon the issues of which they were evidence in the light of everything stated in the pleadings, in connection with all the other evidence introduced by the parties, and a requested charge instructing that the plaintiff had, by putting the pleadings in evidence, thereby made them his own evidence) and tendered all the facts therein stated as true, was properly refused.</p> <p>3. —Promissory Note—Failure of Consideration—Burden of Proof.</p> <p>In an action brought in part on a promissory note, the burden of proving a failure of the consideration of the note was on the defendant pleading such failure under oath.</p> <p>4. —Sale of Machinery—Seller’s Breach of Contract—Damages.</p> <p>Upon an issue as to damages resulting to defendant from plaintiff’s failure to properly furnish and install a pump, as contracted, the court properly charged that, if plaintiffs failed to perform their part of the contract in respect to the pump, either as to workmanship or material furnished, defendant was entitled to recover as damages such sums expended by him as were necessary to conform the pump to what it was to be under the contract.</p> <p>5. —Same—Item not Ordered, but Accepted.</p> <p>Plaintiffs’ right to recover for an article furnished by them in connection with the pump, but not included in the contract, could not .he defeated by the fact that defendant had not ordered the article, where he received and appropriated it, and it was of the value charged.</p> <p>6. —Assignment of Error.</p> <p>An assignment of error complaining of several separate rulings of the court relating to distinct questions is not entitled to consideration.</p> <p>7. —Verdict—Names—Certainty.</p> <p>Where, in an action by H. is Go., a verdict was rendered in favor of the “plaintiff H.,” this was sufficient to sustain a judgment for the plaintiffs, such verdict being “evidently, when construed in the light of the entire record, a verdict for the plaintiffs,</p> <p>8. —Costs—Reconvention.</p> <p>Although defendant, on his plea in reconvention, recovered an amount which was set off pro tanto against plaintiffs’ claim, yet, as plaintiffs recovered for a balance over, they were entitled to judgment for all costs of suit. Rev. Stats., arts. 753, 1439.</p> <p>9. —Judgment—Computing Interest—Offsets.</p> <p>Where plaintiffs recovered for machinery sold, and defendant was allowed a sum as damages for breach of the contract of sale, interest should have been computed on the amount found for plaintiff up to the time the amount allowed defendant became due, then this latter amount should have been deducted and interest computed for plaintiffs on the balance, and the judgment is reformed on appeal accordingly.</p>

<p>1.—Contract of Sale—Charge—Harmless Error.</p> <p>Where, in an action for the value of coal sold under contract, the evidence conclusively showed that the minds of the parties met, and agreed upon the terms of sale, a charge authorizing recovery of the market value if the jury" found that the minds of the parties did not meet on the price, was harmless error as to the defendants.</p> <p>Z.—Same.</p> <p>So, the undisputed evidence showing that the sale was of a particular class of coal, and the plaintiff furnished the class agreed upon, a charge submitting the issue whether or not the coal was of an inferior quality, with instructions as to the measure of recovery in such case, was harmless error as to the defendants.</p>

<p>Appeal from the County Court of Galveston. Tried below before Hon. Lewis Fisher.</p>

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

<p>1. —Assignment of Error.</p> <p>An assignment of error that “The court erred in sustaining defendant’s general demurrer to plaintiff’s original petition and accordingly dismissing the suit and rendering judgment in favor of defendant for costs,” followed by a proposition stating merely that the petition set forth a good and valid cause of action, is not subject, it seems, to the objection that it is too general.</p> <p>2. —Same—Fundamental Error.</p> <p>It is fundamental error apparent on the face of the record to dismiss a suit on general demurrer where the petition states a good cause of action.</p> <p>3. —Fraud—Recovery of Money Paid by Bank.</p> <p>M. telegraphed to a bank asking if it would pay checks of 0. drawn on it in payment for cattle, and the bank answered, “Yes.” 0. then drew a check in M.’s favor for a sum which was in part for payment on cattle and in part for other purposes, and the bank paid the check in ignorance of the fact that a part of the amount was not in payment for cattle. C. had no funds on deposit with the bank. Held, that the bank was entitled to recover of M. such amount paid him on the check as was not in payment for cattle, the transaction being to this extent fraudulent.</p> <p>4. —Same—Joint Wrongdoer—Demurrer.</p> <p>The fact that 0. would also be liable to the bank with M. held not to alter the case; and if by reason of facts not disclosed by the petition C. was primarily or alone liable, or for any other reason the bank was not entitled to recover, this was matter of defense such as would have to be presented-in some form other than by general demurrer.</p>

<p>1.—Life Insurance—Delayed Payment of Premium—Waiver.</p> <p>Where a life policy provided that a failure to pay any renewal premium or note given therefor, or any part thereof, when due, should cancel the insurance and terminate the policy, and a note given by the insured for a renewal premium stipulated that if it was not paid at maturity the policy should cease and the whole amount of the note should be considered as earned and be collectible without restoration of the policy, the receipt by the insurer of a part payment on the note after default in its payment at maturity did not operate as a waiver of the forfeiture where the insured died before completing the payment.</p> <p>it.—Same—Interest—Forfeiture.</p> <p>A failure to pay the interest on the note as stipulated therein operated to work a forfeiture, even if the principal is to be regarded, under the facts stated, as having all been paid prior to the death of the insured.</p> <p>3.—Same—Restoration of Policy After Death.</p> <p>A clause in the policy providing that the insured should have the right to restore the policy at any time within one month after its forfeiture, without furnishing evidence of good health, upon payment of the premium with six per cent interest, did not give the effect of a restoration to a tender of the premium and interest made for the insured after his death and within a month from the forfeiture.</p> <p>4. —Same.</p> <p>Where the insured gave his note for a premium due and the note provided that if it should be collected after maturity and satisfactory evidence of the good health of the insured is furnished, the policy may be restored, this superseded the clause in the policy permitting such restoration without evidence of good health.</p> <p>5. —Same—Annual and Quarterly Payments.</p> <p>Where the policy gave the insured the option of paying premiums annually, semi-annually or quarterly, and he elected to pay annually and executed his note for an annual premium, but failed to pay it in full at maturity, the fact that the amount paid by him on the note before forfeiture would have sufficed, under the quarterly payment plan, to keep the policy alive until the date of his death, did not prevent the forfeiture from taking effect.</p>

<p>1. —Damages for Personal Injury—Double Recovery—Charge.</p> <p>Where in an action of damages for negligent personal injuries the charge instructed the jury to allow plaintiff reasonable and just compensation for the injuries received, referring them to the evidence for the character of the injuries and the extent of the damages, and this was followed by a paragraph . which merely stated in detail what the jury would take into consideration, if warranted by the evidence, in estimating the damages, enumerating the items of loss which the evidence tended to show had already .been sustained, and then directing their attention to the issue, raised both by the pleadings and evidence, of loss thereafter to result from existing or permanent injuries, such charge could not reasonably have misled the jury into giving double damages. See opinion for the charge.</p> <p>2. —Same—Measure of Damages for Permanent Injury.</p> <p>A failure of the charge to explain as fully as might properly have been done how the damages for permanent injuries were to be measured was not reversible error where no further instruction on that subject was requested and the court had already stated the rule in general terms.</p>

<p>1. —Carrier of Passengers—Personal Injury—Contributory Negligence.</p> <p>In an action for personal injury to a passenger the issue of contributory negligence on his part was not raised by evidence showing that, while standing in the water closet of the car, he was thrown against a step ladder leaning against the wall of the closet by a sudden lurch of the train, in consequence of which he fell against the window, breaking the glass and injuring his face and eye.</p> <p>2. —Same—Physical Examination Under Order of Court—Postponement of Trial.</p> <p>It was not error for the court to overrule defendant’s motion for an order requiring plaintiff to submit to an examination of his eye by defendant’s experts, where it did not appear that such experts as defendant had, or intended to select, were near at hand, and that the trial would not be unreasonably delayed in securing their attendance.</p> <p>3. —Same—Examination by Agreement.</p> <p>Defendant was not prejudiced by the overruling of such motion where plaintiff’s counsel thereupon agreed that the court might select a physician or oculist to make the examination, and an examination was so made in connection with defendant’s surgeon and the result testified to before the jury by the examiners.</p> <p>4. —Same—Rebuttal Examination.</p> <p>If plaintiff exhibited his eye to the jury and his physician then and there undertook, while testifying, to point out the injury to the eye, defendant was entitled, in rebuttal, to call medical experts of its own selection to, in like manner, examine the eye and to testify as to the result of such examination.</p> <p>5. —New Trial—Postponement to Obtain a Deposition.</p> <p>Where defendant’s motion for new trial' was presented only two days before the expiration of the term of court, and plaintiff refused to waive the five days’ service of interrogatories to take the deposition of a witness in regard to newly discovered evidence in support of the motion, the court did not err in refusing to postpone the hearing of the motion and in declining to order that a commission be issued forthwith to take the deposition of the witness.</p> <p>6. —Same—Affidavit—Jurat Wanting.</p> <p>A motion for new trial on the ground of newly discovered evidence is properly overruled where the affidavit in its support, though signed and purporting -to be sworn to, does not bear the signature and seal of the officer.</p> <p>7. —Same—Evidence not Cumulative.</p> <p>Evidence in an action for personal injury, asserted as newly discovered in a motion for new trial, to the effect that an eye specialist, in testing plaintiff’s ability to see with his right eye, the sight of which he claimed had been destroyed, had discovered that he could see to read with that eye, and that it was in a healthy condition, held not to be cumulative.</p> <p>8. —Personal Injury—Damage to Earning Capacity.</p> <p>Evidence in an action for injury to the eyes that plaintiff had been engaged in farming and had worked some months as a railroad section hand prior to the injury, and that since then he had worked as a farm hand, though not as “peart” as before, without any evidence as to the value of his services, was insufficient to authorize recovery for diminished earning capacity.</p>

<p>1. —Carrier of Passengers—Licensee—Ordinary Care.</p> <p>Where a passenger, through his own oversight, fails to get off the train at his destination, he becomes a licensee to whom the carrier owes the duty to use ordinary care to avoid injurying him, and is his reciprocal duty to use ordinary care for his own safety.</p> <p>2. —Same—Contributory Negligence in Disembarking.</p> <p>Where plaintiff failed to get off the train at his destination, and the conductor undertook to stop the train to enable him to do so, and plaintiff stepped off before the train came to a full stop and without noticing that it was still moving, and so was injured, he was guilty of contributory negligence which was the proximate cause of his injury.</p>

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

<p>Attorney Fees—Stipulation for in Note—Extent of Recovery.</p> <p>A stipulation in a note for the payment of ten per cent attorney fees in case of collection by attorney is a contract for indemnity and not for liquidated damages, and where the holder has not agreed with his attorneys on the amount to he paid for their services in collecting he is entitled to recover under such stipulation only such amount as the attorneys could recover from him, viz., the reasonable value of their services.</p>

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

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

<p>1. —limitations—Adverse Possession.</p> <p>Since possession adverse to the true owner will sustain title by limitation, it was error, in a case where defendant asserted title by virtue of ten years' possession and the evidence did not show any other claim or title in any other person, for the court to instruct that defendant’s possession must have been adverse to all others, such charge being misleading and too onerous.</p> <p>2. —Same—Squatter—Public Domain.</p> <p>The possession of titled land under the belief that it is vacant public domain and with' no intention shown of acquiring title from the State, is that of a mere squatter, not adverse in character, and will not give title - by limitation.</p> <p>3. —Same—Declarations of Party in Possession.</p> <p>A statement by one in possession of land that he intended to purchase it from the owner is fatal to a claim of adverse possession if it was made during the limitation period, but if made after such period it is merely evidence tending to show that the possession was not adverse.</p> <p>4. —Same—Charge—Request Necessary.</p> <p>Where the evidence was conflicting as to the time when the statement was made, a failure of the charge to explain its effect if made after the limitation period was not reversible error in the absence of a request for a charge on that theory.</p> <p>5. —Administrator’s Sale of land—Deed.</p> <p>Where the order approving a sale of land by an administrator showed that the purchase money had been received by him, the sale was effective without any deed, and it was immaterial that the deed was executed before the order of' approval.</p> <p>6. —Same—Estoppel Against Heirs.</p> <p>Where an administrator’s application for an order to sell the property of the estate for the purpose of division recited under oath that it was made at the request of the heirs, and the court thereupon granted the order, the title of the heirs passed to the purchaser by estoppel, and a stranger to the proceedings could not impeach the sale, especially after a long lapse of time, as where the sale was made in 1845.</p> <p>7. —lost Deed—Circumstantial Evidence.</p> <p>Where a deed dated in 1845 was lost and the grantor and grantee and the notary talcing the acknowledgment were all dead, and the record of the deed could not be used because of a defect in the acknowledgment, proof that it was recorded in the handwriting of the grantor, who was then deputy clerk, was cogent circumstantial evidence that he made the deed.</p> <p>8. —Same—Expert Evidence—Handwriting.</p> <p>If a genuine signature or handwriting of the deceased grantor is established any witness who properly qualifies as an expert or shows himself acquainted with the grantor’s handwriting may testify as to whether or not the deed as entered in the record was in the same handwriting.</p>

<p>1. —Lease by Agent—Undisclosed Principal—Bight to Sue Upon.</p> <p>Where a lease of realty was made to defendant by plaintiffs as “lessors, agents of the S. heirs,” without any other reference to such heirs, it bound plaintiffs personally as lessors and agents of an undisclosed principal, and they could maintain suit thereon in their own name and right to recover rents and possession of the premises at the expiration of the lease.</p> <p>2. —Same—Sequestration.</p> <p>In such an action plaintiffs were authorized to make the affidavit and bond for a writ of sequestration, and the writ having been quashed without lawful reason appearing, there was no error in refusing to permit the lessee, under his plea in reconvention, to prove damages claimed for wrongfully suing out the writ.</p> <p>3.—Assignment of Error—Sequestration.</p> <p>Assignment of error complaining of the action of the court in sustaining exceptions to the petition and in quashing a writ of sequestration will not suffice to present error in taxing the complainant with the costs of the sequestration.</p>

<p>Benefit Society—Death of Beneficiary Before Member—Lapse of Death Benefit.</p> <p>Where the object of a fraternal, charitable and benevolent society was to provide for the payment, on the death of a member, of a stipulated sum to such beneficiary as the deceased may have designated while living, and the laws of the society provide that the member may name any person without restriction as the beneficiary and prescribe the means by which a member can change the named beneficiary, but make no provision for payment in case a designated beneficiary dies first and no other is named by the member, the benefit fund in case of such failure to name another beneficiary lapses to the society, and can not be recovered by the administrator of the member after the latter’s death. Following Screwmen’s Association v. Whitridge, 95 Texas, 539.</p>

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

<p>1. —Railroads—Lease of Right of Way—Stipulation Against Negligence.</p> <p>A railroad company, in leasing a part of its right of way to a third person for coalhouse purposes, does not act. in its capacity as a common carrier, and hence may make a valid stipulation in the lease for exemption from loss or damage by fire communicated by sparks from its locomotives or otherwise.</p> <p>2. —Same—Assignee of Lease Bound.</p> <p>An assignee of such lease would be bound by the stipulation therein exempting the company from liability for damage caused by fires set from locomotives, but a subtenant would not be so bound.</p> <p>3.—Same—Subtenant not Bound.</p> <p>Where the lessee from the railway company sold the coalhouse he had placed on the right of way to M., and later M. leased the house to H., no reference being made to the original lease, nor written consent to its assignment obtained as provided therein, and H. having no knowledge of such lease, but making his payments of rent to M., while" the railway company made no objection to the occupancy of the successive parties and continued delivering cars of coal at the coalhouse, such facts showed that H. was a subtenant in no way bound by the covenants in the original lease.</p>

<p>1. —Personal Injury Jo Servant—Negligence.</p> <p>Where plaintiff, a machinist’s helper, while working with the machinist in adjusting certain machinery, placed his fingers where they might be injured and in doing so acted in accordance with the custom of doing the work, and as an ordinarily prudent person would have acted under like -circumstances, and the machinist, by moving a rod, caused it to fall, injuring plaintiff’s hand, and in so moving the rod was guilty of negligence, which was the proximate cause of the injury, plaintiff was entitled to recover, unless the jury found that he was guilty of contributory negligence in placing his fingers as he did.</p> <p>2. —Same—Negligence of Foreman—Contributory Negligence—Proximate Cause.</p> <p>If the machinist saw and knew of the dangerous position of plaintiff’s fingers and knew the danger which would result to him by moving the rod, and yet moved it, thus causing the injury, and the moving of the rod was the proximate cause of the injury, and such an act as a man of ordinary prudence would not have done under the circumstances, plaintiff was entitled to recover, and the court’s charge was correct in not extending the defense of contributory negligence to this phase of the case, involving a principle analogous to the doctrine of discovered peril.</p> <p>3. —Same—Assumed Risk—Negligence of Master.</p> <p>A servant does not assume any -risk of injury resulting through the negligence of the master.</p> <p>4. —Same—Selecting Dangerous Method of Work.</p> <p>The servant does not assume the risk and become guilty of contributory negligence by selecting a dangerous way to perform the work when there is a safe way, unless he knows the way selected to be dangerous, or the danger is apparent or obvious; and the danger is not obvious or known where it results from the foreman doing, in connection with the servant’s work, a negligent act which a person of ordinary prudence would not have then done.</p>

<p>1. —Administration—Order of Sale—Notice.</p> <p>Where an administrator applied to the Probate Court for an order to sell the lands of the estate to pay debts, creditor’s of the estate who appeared and protested generally against the order did not thereby waive their right to attack its validity on appeal on the ground that statutory notice of the application was not given.</p> <p>2. —Same—Recital of Notice in Judgment.</p> <p>A recital in the order and judgment directing the administrator to sell lands, that notice was given as required by the statute, is evidence "of such notice only when the attack upon the judgment is collateral, and not in case of an appeal from the judgment.</p> <p>3. —Same—Showing Necessity for Sale—Objection not Made Below.</p> <p>A failure of the creditors -nvlio opposed the granting of the order of sale to urge objections below on the ground that there was no evidence showing a necessity for the sale, did not preclude them from urging such objection on appeal.</p> <p>4. —Same—Necessity for Sale not Shown.</p> <p>Evidence that the estate was insolvent, while sufficient to authorize a sale ’ of its lands to pay debts, did not authorize an order to sell the lands in bulk.</p> <p>5. —Same—Lien Creditors—Rights as to Sale.</p> <p>The fact that certain creditors severally held liens on given tracts of land and that these were ordered to be sold separately in satisfaction of their liens, did not affect their right to insist that the order of sale should be regular and valid as to the remaining lands, since, for any balance of their debts that might remain unsatisfied, they would be entitled to participate pro rata with the general creditors in any surplus proceeds from the sale of the other lands and illegalities in the sale would lessen the price such lands might bring.</p> <p>6. —Same—Irregularities not Vitiating.</p> <p>A failure' in the application to sell lands to show the estimated expenses of administration and to give a list of all the property on hand liable for the payment of claims, as required by the statute, could only be taken advantage of by exceptions made at the proper time, these requirements being merely directory. Rev. Stats., art. 2123.</p>

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

<p>1. —Passenger—Carrier—Boarding Train—Negligence.</p> <p>Evidence considered and held to support a recovery of damages for injury to a passenger, by moving train while he was boarding it.</p> <p>2. —Same—Degree of Care—Charge.</p> <p>Charge requiring of the conductor the care which would be exercised by “very careful prudent persons” in affording a passenger opportunity to board train safely held a proper statement of the law and not unduly emphasized by repetition, nor contradictory or confusing.</p> <p>3. —Charge—Assuming Fact.</p> <p>The submission to the jury of the question whether the train was stopped long enough for the passenger “in his physical condition, as known to the conductor” to board same with reasonable care, does not assume that his condition was so known.</p>

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

<p>1. —Failure of Consideration—Shipment.</p> <p>On the issue whether goods shipped from Texas to Boston were of quality they were guaranteed to show at the place of delivery a charge was improper which permitted a determination of such quality at the place of shipment, instead of destination, to control.</p> <p>2. —Special Issues.</p> <p>Defendant having plead in reconvention and the jury having returned a verdict against him on this plea, though only special issues involving the claim of plaintiff against defendant were submitted to them, it was error to render judgment in defendant’s favor on his reconvention. The Appellate Courts are not authorized to treat an issue not submitted or requested to be submitted as passed on by the trial court where the special issues are submitted to a jury.</p>

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

<p>Appeal from the District Court of Jefferson. Tried below before Hon. A. T. Watts.</p>

<p>Limitations—Adverse Possession—Conflicting Grants.</p> <p>The owner of a junior grant and survey which in. part overlaps an older grant can acquire title to the part in conflict by limitation and adverse possession for three or five years only where he has actual possession of the part in conflict, and it is not sufficient that he has possession, with improvements thereon, of the part of the junior survey not so in conflict.</p>

<p>Appeal from the County Court of Liberty. Tried below before Hon. M. D. Bayburn.</p>

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

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

<p>1. —Carriers of Freight—Harmless Error in Admitting Evidence—Correction "by Charge.</p> <p>The erroneous admission in evidence of testimony on the part of plaintiff showing a contract made by the carrier’s agent (he having no authority to make it) to get the shipment of cattle to market by a certain day, was harmless where the court charged the jury not to consider such evidence for any purpose, and that the law imposed on the carrier only the duty of exercising ordinary care to transport the cattle within a reasonable time and with reasonable safety.</p> <p>2. —Same—Evidence to Show Negligent Delay.</p> <p>Such evidence, while not admissible over the subsequent written contract to show an oral agreement to get the cattle to market by a certain day, was admissible, it seems, as bearing on the issue of negligence in failing to get them there under the written contract by that time.</p> <p>3. —Practice on Appeal—Suggestion of Delay.</p> <p>A suggestion that the appeal is taken only for delay opens up the entire record and requires the Appellate Court to reverse for errors though not assigned.</p> <p>4. —Same—Affirmance with Damages.</p> <p>There appearing to be no just cause for the appeal in this case, it is held to have been taken for delay only, and the judgment is therefore upon appellees’ motion affirmed with ten percent damages.</p>

<p>1. —Street Cars—Negligent Construction—Proximate Cause—Injury to Child.</p> <p>Where an open summer street car was in part guarded on the side by a wire curtain so arranged that a child sitting on the outside end of the seats could fall through a space left below the curtain and between it and the edge of the floor, it was properly found that there was negligence in the construction of the car, and that such negligence was the proximate cause of injury to a child of three years that fell from the car.</p> <p>2. —Contributory Negligence—Child—Negligence of Parent not Imputed.</p> <p>Where a child of three years is injured through the negligence of a carrier in not providing a car safe for small children, negligence of the parents who were in charge of the child at the time in failing to observe the danger of the situation and guard the child against it will not be imputed to the child so as to defeat a suit for its benefit.</p>

<p>1.—Carriers—Cattle Shipment—Damages—Place of Destination.</p> <p>Where plaintiff shipped cattle to Fort Worth, with privilege to ship to Kansas City upon through rate, if they were not sold at Fort Worth, and a small part of them were sold there and the remainder went on to Kansas City, it was error for the court in an action of damages for negligent delay at the initial point and rough handling en route to Fort Worth, to charge that the measure of damages was the depreciation in the market value of the cattle at Fort Worth, instead of Kansas City, since the rule as given properly applied only to the cattle that were stopped and sold at Fort Worth.</p> <p>2.—Same—Charge Without Evidence—Assignment.</p> <p>There being no proof of the market value of the cattle at Fort Worth, the charge was also erroneous in that it was not warranted by the evidence; and it was not necessary for appellant to assign error to the verdict as being excessive in order to avail itself of this objection.</p> <p>3.—Same—Scarcity of Stock Cars.</p> <p>In an action for damages brought on the ground of the carrier’s negligence in failing to furnish cars within a reasonable time after demand, and not under the statute, it was error for the court’s charge to exclude consideration of evidence showing that the carrier was prevented from furnishing the cars sooner by a great rush of cattle business along its line and that of other roads at that time.</p>

<p>Contract—Acceptance of Offer—Change of Terms.</p> <p>Defendant, in answer to an inquiry, wrote plaintiffs offering to feed 400 head of cattle for them at certain stated prices for meal and hulls. Plaintiffs replied, “We will feed from 650 to 700 head with you at prices named.” To this defendant answered that owing to a change of conditions it would not undertake to feed the cattle. Held, that as plaintiffs had not accepted the offer as made by defendant no contract was completed prior to defendant’s withdrawal of its offer.</p>

<p>1. —Damage to Land—Joint Ownership—Sale After Injury.</p> <p>• Where plaintiffs were joint owners of land injured by the negligent construction of a railroad across it, and they sued to recover the damages, the petition alleging, as the fact was, that one of the plaintiffs had sold his interest in the land to the other prior to the suit but subsequent to the injury, the rendition of a verdict and judgment in favor of the plaintiffs (jointly) for the damages caused did not present error of which defendant could complain.</p> <p>2. —Same—Sale as Affecting Right of Recovery.</p> <p>In case of permanent injury to land the owner may sue for and recover the damages, although he may, subsequent to the injury and prior to the suit, have sold the land to another.</p> <p>3. —Same—Measure of Damages—Permanent and Temporary Injury.</p> <p>Where the injury to land is of a permanent character, such as results from overflows caused by the construction of a railroad track embankment without sufficient culverts, the entire damages may be recovered at once, and the measure of damages is the depreciation in the value of the property, the difference between its market value immediately before and after the construction of the embankment. Evidence of such market value held improperly excluded in this case.</p> <p>4. —Same—Evidence—Subsequent Overflows.</p> <p>The injury being permanent in character, it was error to admit evidence of the market value of the land after an overflow which occurred nearly two years subsequent to the construction of the embankment.</p>

<p>Contested Election—Writ of Error—Costs.</p> <p>Since a writ of error to the Court of Civil Appeals will not lie in a contested election case, the remedy being by appeal only, the writ can not be used to bring up for review the rulings of the trial court in taxing the costs in such an action, the costs being a part of the controversy and not severable therefrom.</p>

<p>Appeal from the County Court of Limestone. Tried below before Hon. James Kimbell.</p>

<p>1— Parties—Cross Action—Right to Fund in Bank.</p> <p>Where defendants by cross-action asserted rights to a fund deposited with plaintiff bank and claimed by a third person, and also made such third person a party to the suit, they could not complain of the court’s action in overruling their genera) demurrer to his crossbill and settling the rights of the parties to such fund in one suit.</p> <p>2— Pleading and Judgment—Action on Note—Prayer for Damages.</p> <p>Where the action is on a note which is set out in full in the petition, with prayer for the debt, interest and attorney fees stipulated in the note, a judgment for the amount so due is not error because it is in excess of the amount stated in the ad damnum clause of the petition.</p> <p>3— Practice on Appeal—Presumptions- in Absence of Statement of Facts.</p> <p>It will be presumed on appeal in the absence of a statement of facts, that the facts necessary to support the judgment were proved on the trial below.</p> <p>4— Trust Fund to Pay Debts of Corporation—Right to.</p> <p>Where .money was deposited in a bank as security for the payment of the debts of a corporation, under an agreement made with a purchaser of the corporate property and rights stipulating that no money should be paid out of the fund except to creditors until all the debts due by the corporation were discharged in full, such money constituted a trust fund to pay the corporation’s debts, and was properly adjudged to such purchaser upon proof that he had been compelled to pay debts of the corporation equal to or exceeding the amount of the fund.</p>

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

<p>Appeal from the District Court of Grayson County. Tried below before Hon. B. L. J ones.</p>

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