Volume 39 — Texas Civil Appeals Reports

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

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

<p>Appeal from the County Court of Hunt County. Tried below before Hon, F, M. Newton,</p>

<p>Bankruptcy—Preference—Notice.</p> <p>A transfer of property by an insolvent debtor, made within four months prior to the adjudication of his bankruptcy is not voidable by the trustee in bankruptcy as a preference unless the transferee or his agent acting for him had reasonable cause to believe that it was intended by the transfer to give a preference.</p>

Tried below before Hon. Lewis Fisher. This was an action by appellees, as plaintiffs, upon a promissory note. The suit was begun October 17, 1903, and the defense of limitations was interposed. The judgment was for plaintiffs, from which the defendant appealed.

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

<p>1. —State School Land—Forfeiture—Effect.</p> <p>The State has the power to forfeit, through a declaration of the Land Commissioner, a sale of State school land for nonpayment of interest due thereon, and such forfeiture reinvests the title in the State, notwithstanding the provision of the statute permitting a reinstatement of the sale, under certain conditions, upon payment of all interest due.</p> <p>2. —Same—Adverse Possession Broken.</p> <p>Where school land was paid out by and patented to plaintiff twenty years after the date of its sale by the State, and defendant claimed a part of the survey under the ten years statute of limitation, having had such part enclosed in his pasture for ten years, plaintiff was entitled to show that during such ten years’ period the sale by the State had been forfeited for nonpayment of interest, and that the sale was not reinstated until nine months after such forfeiture, thus causing a break in the continuity of the adverse possession.</p> <p>3. —Same—Effect of Break—Tacking.</p> <p>Since limitation does not run against the State, defendant’s possession during the nine months was not adverse to the true owner at that time, and so was not such possession as the statute requires, and after the continuity of the adverse possession was thus broken, defendant’s possession after the reinstatement could not be tacked on to his possession prior to the forfeiture.</p>

<p>I. —Pleading—Trespass to Try Title—Limitations.</p> <p>Where plaintiffs sued in trespass to try title for 160 acres out of a described 640 acre tract, and their petition was defective in not specifically describing the 160 acres, claimed by virtue of limitations and possession for ten years, but there was no special exception taken on that account, it was error for the court to sustain a general demurrer to plaintiffs’ petition because of such defect, since the judgment could award to plaintiffs the 160 acres, with their improvements, to which they might be entitled. Giddings v. Fischer, 97 Texas, 184, distinguished.</p>

<p>Appeal from the County Court of De Witt. Tried below before Hon. Chas. A.- Summers.</p>

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

<p>1. —Tax Suit—.Citation—Unknown Owner—Notice by Possession.</p> <p>Where the owner of land is in the actual occupation thereof, through agents or tenants, and his title is of record, the State and its officers are chargeable with knowledge of such possession and title, and can not, by a suit for delinquent taxes against an unknown owner, with citation by publication only, deprive the owner of title.</p> <p>2. —Same—Void Judgment.</p> <p>The judgment and sale had thereunder in such case, in a suit brought under the Acts of 1897, page 132, were void and ineffectual to pass the owner’s title, and the judgment was subject to collateral attack in an action of trespass to try title.</p>

<p>1.—Practice—Sustaining Exceptions but Admitting Evidence—Harmless Error.</p> <p>Error of the court in sustaining exceptions to certain parts of defendant’s answer became immaterial where, on the trial, evidence was admitted on all the matters pertaining to defendant’s rights.</p> <p>Z.—Married Woman—Separate Property—Purchase of Railroad.</p> <p>Where the consideration for- a purchase of the property and franchises of p. railroad" corporation at receiver’s sale was paid out of the separate funds of a married woman and the deed was taken in the name of a third party who bid it in for her use and benefit, she became thereby vested with the absolute title, which could be divested only by written transfer duly acknowledged by her, or by estoppel or limitation.</p> <p>3. —Same—Conveyance with Notice—Deed only a Mortgage.</p> <p>Where such third party, vested with the legal title, conveyed the property to K., who was acting for a bank, to secure a loan by it to the married woman and her husband, and after a new corporation was organized to operate the road IC. conveyed the property to such new corporation, which had notice of the wife’s rights, her title did not pass, the deed to K. being intended only as a security and conferring on him no power to convey.</p> <p>4. —Same—Wife Accepting Shares of Stock—Estoppel.</p> <p>The new corporation issued certificates of stock to certain parties, among them the wife, who endorsed in blank those issued to her and they were hypothecated by her husband, part of them being placed with IC. to secure the debt due the bank, in lieu of the deed to IC. The husband voted and controlled the'wife’s stock in the directors’ meetings, none of which she attended. Held, that the wife’s title did not pass to the new corporation, she swearing that she never consented to the sale of her interest in the property, and the deed executed by IC. to the new corporation remaining in her possession undelivered, though the directors’ minutes recited that it was accepted.</p> <p>5. —Same—Estoppel of Married Woman—Pleading.</p> <p>A married woman is not estopped by the acts and representations of her husband, nor by her own conduct unless she is guilty of some act of fraud, and an estoppel, to be available, must be pleaded by the party claiming the benefit thereof.</p>

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

<p>1. —Personal Injuries—Pleading and Charge.</p> <p>Where the petition in an action for personal injuries alleged other injuries than those proven, and the charge instructed that if defendant was negligent, etc., and if plaintiff was thereby injured “in whole or in ' art, as alleged in his petition,” the jury should find for the plaintiff, this could not be construed as a charge upon facts not introduced in evidence, and as authorizing a recovery for injuries pleaded but not proved. The better practice, however, is for the charge to make a statement of the injuries which the jury are authorized to consider.</p> <p>2. -—Same—Former Injuries—Charge.</p> <p>Where there was evidence that some years before the injury in question plaintiff had sustained injuries from which he had not entirely recovered at tlie time of trial, a failure of the charge to limit recovery for medical expenses, etc., to such as were incurred on account of the injuries complained of, was not error in the absence of request for a charge supplying the omission.</p>

<p>1. —Records of Court—Suit to Correct—Jurisdiction.</p> <p>A court has jurisdiction to entertain a suit to correct its record, by expunging therefrom an order which it has not made, after the expiration of the term at which the record was made, and after an appeal has been perfected from a final judgment in the case. ■</p> <p>2. —Same—Pleading.</p> <p>In such a suit it 'is not necessary that the petition should be supported by an affidavit showing fraud, surprise, mistake or meritorious defense, since the suit is not for a new trial nor to set aside or correct a. judgment actually rendered, and the rules governing such proceedings are not applicable to it.</p> <p>3.—Same—Practice on Appeal—Postponement.</p> <p>Where, after an appeal has been perfected, the appellee institutes a suit in the trial court to correct the record in the case as to a matter upon which the jurisdiction of the Appellate Court depends, he is entitled to have the submission of the cause on appeal postponed until the final determination of the application to correct the record.</p>

Tried below before Hon. J. M. Pearson. The bill of exceptions to the exclusion of the testimony complained of in the fifth assignment showed that defendant, in cross-examining Gladden, a material witness for plaintiff, offered witness an affidavit, sworn to by him, that a certain young woman was eighteen years of age, and that there was no legal objection to her marriage with another person named therein, and proposed to prove by the witness that the affidavit was knowingly…

<p>1. —Brief—Proposition—Assignments.</p> <p>Propositions raising questions not presented by the assignments of error need not be considered.</p> <p>2. —Deed—Execution—Evidence—Married Woman.</p> <p>To prove the execution of a lost deed by a married woman, where forgery has been plead, evidence of the purchase and payment for the land by the grantee and of the existence of the deed with separate acknowledgment is admissible, in connection with other evidence, though not in itself going to prove that the deed was made in pursuance of such purchase or that the deed described by the witness was in fact executed by such grantor.</p> <p>3. —lost Deed—Evidence.</p> <p>In proof of an unrecorded lost deed evidence of a witness as to the existence of such a deed and the regularity of the acknowledgment, not extending to proof of its signing by the grantor, was admissible as tending to prove a material issue in the case, the effect of it being for the jury to determine.</p> <p>4. —Charge—Burden of Proof.</p> <p>Charge considered and held to sufficiently present to the jury the proof and the burden of proof necessary to show the execution of lost deeds and the privy acknowledgment thereof by a married woman.</p>

<p>1. —Evidence—lawyer—Privileged Communication.</p> <p>A statement by a testator to the lawyer preparing his will that a debt, which by his will Avas relinquished to the debtor, was secured by a deed. of the debtor’s property to him Avas inadmissible, in an action by such "debtor against the heirs and devisees of the testator, to shoAV that the deed in question was a mortgage and Avas released by the will; the declaration Avas a privileged communication and the heirs, devisees and representatives of declarant could claim the privilege.</p> <p>2. —Same.</p> <p>The exception permitting the attorney who wrote a will to testify to statements by the téstator applies only between litigants who claim under such will, and is not available to one aa’Iio, though a devisee under the will, is asserting in the litigation rights not derived therefrom, but claimed adversely to the testator.</p> <p>3.—Evidence—Party—Transactions with Decedent.</p> <p>The right to exclude testimony hy a party as to a transaction with a decedent is limited to his heirs and representatives, and is not available to his devisees or legatees.</p>

<p>liquor Dealer’s Bond—Screens.</p> <p>There was no violation of the clause in a liquor dealer’s bond conditioning it that the seller should not maintain a screen or other device to obstruct the view, where, owing to the irregular form of the room rented for carrying on the business, the bar could not be seen from the front door, no screen or other device being used to obstruct the view.</p>

<p>1. —Homestead—Designation—Mortgage.</p> <p>The validity of a designation of the homestead, made at the time a mort-. gage of other lands was executed, is not affected by the fact that such designation was planned, prepared and executed at the instance of the mortgagee, where all the land embraced was used at the time for homestead purposes, and no fraud is shown on the part of the lender as against the husband, or on the part of either or both as against the wife.</p> <p>2. —Same—Fraud—Pleading.</p> <p>Fraud in the designation could not be proven in order to defeat the mortgage where the fraud was not pleaded.</p> <p>3. —Same—Designation by Husband Alone.</p> <p>As the head of the family the husband may set apart the homestead, and it is not essential to the validity of such designation that it be signed by the wife, or even that, in the absence of fraud, it be assented to or concurred in by her.</p> <p>4. —Same—Homestead Use—Revenue.</p> <p>One who owns 500 acres of land, all of which is used for homestead purposes, has the right to designate for the homestead any 200 acres thereof, though the use of the part designated be a mere convenience and it produces little or no revenue.</p> <p>5. —Same—Mortgage Foreclosure—Defense of Homestead.</p> <p>In an action to foreclose a mortgage wherein the homestead right was set up in defense and in reply plaintiff pleaded in estoppel a designation of the homestead at the time of the loan, it was not essential to the validity of the mortgage that there should have been a written application for the loan, or that such application should contain a description or field notes of the land to be mortgaged, and hence proof that a description and field notes were pasted to the application after the husband had signed and sworn to it was irrelevant and inadmissible.</p>

<p>Boundary—Fact Case.</p> <p>Evidence in a case involving a question of boundary held to conclusively show the location of the tract in controversy to be at a different place from that found by the jury.</p>

<p>1. —Injury from Overflow—Pleading—Issue of Negligence Raised.</p> <p>Where in an action for injury to land and crops from the overflow of • surface water caused by the construction of an embankment it was alleged that the natural flow of water had been obstructed by the embankment and that a ditch with culvert constructed through the embankment, designed to carry off the water, was not large enough for that purpose during times of freshets, and that the water had no other outlet, this was sufficient to raise the issue of an improper construction of the ditch in that it was not sufficient to carry off the water.</p> <p>2. —Same—Minimizing Injury—Trespass.</p> <p>Where after plaintiff’s land and crops had been overflowed for several days by reason of defendant’s negligence in the construction of its embankment, they cut the embankment and thus drained the land, defendant could not defeat any part of the liability on the ground that plaintiffs should have sooner done the cutting and thus prevented the damage, since they were not required to commit a trespass in order to protect or relieve themselves from injury resulting from the act of a wrongdoer.</p> <p>3. —Same—Irrigation Company—liability—Skilled Engineers.</p> <p>The defendant irrigation company having failed in its duty to so construct its canal, ditches and embankment as not to cause injury to adjacent landowners by the accumulation of water during ordinary rainfalls, it was liable for the damage resulting therefrom, no matter how learned and skillful may have been the civil engineers it employed in the construction work.</p> <p>4. —Assignment of Error—Statement of Facts.</p> <p>An assignment of error to the exclusion of certain evidence fails where the agreed statement of facts shows that the evidence was admitted.</p> <p>5. —Same—Rebuttal Evidence—Harmless Error.</p> <p>An assignment complaining of the admission of certain irrelevant evidence is not well taken where such evidence was in rebuttal of other evidence on the same point drawn out by the other party, and it does not appear that it could have been detrimental.</p>

<p>1. —Sale—Breach of Contract—Remedies.</p> <p>Upon breach of contract of sale the seller has choice of three remedies; (a) he might retain the goods and recover the difference between the contract price and the market price at the time and place of delivery; or (b) he might hold the goods for the buyer and recover the contract price; or (c) he might resell the goods for the best price obtainable at the place of delivery, or the most accessible market, and recover the contract price less the net amount realized for the goods at such sale.</p> <p>2. —Same—Election.</p> <p>Having elected which one of the three remedies he will pursue, the seller is bound by the measure of damages appropriate thereto, and he can not be held to any other measure by the purchaser.</p> <p>3.—Same—Measure of Damages.</p> <p>If the seller elects to keep the goods, the measure of damage is the difference between the contract price and the market value at the time of the breach, and not at some time in the future.</p>

<p>Appeal from the County Court of Lynn. Tried below before Hon. W. L. Elliott.</p>

<p>1. —Railroads—Injury to Employe—Negligence.</p> <p>While an engine wiper was engaged in cleaning an engine standing on a-switch track he was injured by reason of a string of cars standing near being backed suddenly against the engine by a switching crew in making a coupling at the other end of the string. No person was sent forward, as was the custom, to give notice of the movement of the cars, although the switching crew knew or should have known of the engine being there. Held, that negligence was sufficiently shown to authorize a recovery for the injury.</p> <p>2. —Same—Assumed Risk.</p> <p>Because the engine wiper knew that a switch engine was liable at any time to make a coupling from the other end of the nearby string of cars, he did not assume the risk resulting from its being negligently made.</p> <p>3. —Same—Negligence of Lessee.</p> <p>A railway company is bound to furnish its employe a safe place to work, and it is liable for injury to him resulting from the negligence of another company to which it has given the right to use its yards and track.</p> <p>4. —Same—Ringing Bell—Sufficiency of Warning—Fact Question.</p> <p>It was for the jury to determine whether, because of the noise made there by a mill and cooperage shop, other warning than the ringing of the bell at the time of making the coupling should have been given by the switching crew in the exercise of proper care.</p>

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

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

<p>1. —Railroads—Signals at Crossings.</p> <p>One who is traveling along a highway adjacent to and parallel with a railroad track is within the protection of the statute requiring signals to be given by whistle or bell for public crossings, and a failure to give such signals may be negligence as to him, although he had not used and was not intending to use the crossing. Rev. Stats., art. 4507.</p> <p>2. —Same—Forbearing to Whistle—Discovered Peril.</p> <p>Where the engineer of the train saw that plaintiff’s horse would be frightened by the blowing of the whistle and plaintiff probably injured, and he could have desisted from blowing just then consistently with his duties and without damage to the railroad company, his failure to so desist might be negligence, despite the statutory requirement.</p>

<p>1. —Homestead—Abandonment by Wife—Conveyance of.</p> <p>Where a wife had no interest in the homestead except the right by marriage, and she abandoned the husband and the homestead and lived in adultery with another man, a conveyance of the homestead by the husband alone passed the title.</p> <p>2. —Same—Estoppel.'</p> <p>Where the wife was making no homestead claim, the husband was estopped by his. deed from asserting such a claim contrary to the conveyance he had made.</p>

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

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

<p>Appeal from the District Court of Johnson County. Tried below before Hon. Nelson Phillips.</p>

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

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

<p>1. —Estoppel—Reliance and Action upon Representation Necessary.</p> <p>To create an estoppel by representations made it is essential not only that the representations be believed and relied on, but they must induce action on the part of the one claiming the benefit of the estoppel, and he must have been led thereby to change his position for the worse.</p> <p>2. —Same—Agent—Authority to be Shown.</p> <p>Where the representations, as to the ownership of land, relied on to create an estoppel against the owner, were made by an alleged agent, it must be shown that he was acting for the owner and had authority to bind him by the representations.</p> <p>3. —Same—Fact Case—Boundary.</p> <p>Evidence considered and held not to show that a purchase of 850 acres of land was induced by representations as to a certain 70 acres being part of the survey and included in the purchase, and not to sustain a plea of estoppel, nor to raise the issue of boundary.</p> <p>4. —Trespass to Try Title—Estoppel—Title Held in Trust.</p> <p>One who holds the legal title to land by a deed which is in reality a conveyance to him in trust for another, may maintain an action of trespass to try title to recover the land, and grounds given for the failure of proof to establish an adverse title by estoppel would apply with the same force whether plaintiff held the land in his own right or in trust.</p>

<p>Appeal from the District Court of Mitchell. Tried below before Hon. Jas. L. Sheppard.</p>

<p>1. —Dangerous Premises—Negligence—Trespassing Animals.</p> <p>Where a horse running at large in violation of a city ordinance fell into an open well on defendant’s uninclosed lot, defendant could be held liable for the injury only on the ground of gross negligence.</p> <p>2. —Same—Gross Negligence not Shown.</p> <p>It was not sufficient in this case- to charge defendant with gross negligence that he permitted the well to remain open and said that he, and not the city, would be liable for damages caused thereby, since it was not reasonably to be expected that animals forbidden by law to run at large would trespass on the lot and fall into the well.</p>

<p>Negligence—Assumed Risk—Contributory Negligence.</p> <p>Evidence in an action by a ear inspector, injured through the backing of an engine against a string of cars while he was between them, held to raise the issues of defendant’s negligence and of contributory negligence and assumed risk on plaintiff’s part, and to warrant the jury’s verdict in plaintiff’s favor.</p>

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

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

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

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

<p>Error from the ^District Court of Dallas, Tried below before Hon, Richard Morgan,</p>

Tried below before Hon. T. D. Montrose. The following is the special charge asked by defendant, embodied in the twenty-fourth assignment of error and referred to in the opinion: “The defendant requests the court to instruct the jury as follows: ‘You are instructed that if you believe from the evidence that the plaintiff on the occasion in question attempted to board the defendant’s train while the same was in motion, and that the plaintiff knew that the attempt to do so was…

<p>1. —Assignment for Creditors—Affidavit to Claim.</p> <p>An affidavit to a claim presented to an assignee for creditors which recites that the statement of claim is correct, instead of averring that it is “just and true,” as required by the statute, is insufficient. Rev. Stats., art. 78.</p> <p>2. —Same—Time for Tiling—Amendment.</p> <p>Where a claim, with defective affidavit thereto, is filed with the assignee withiiy six months from the notice of his appointment, an amendment of the affidavit" made after the six months will not relate back to the time of the filing and thus secure precedence for the claim over the rights of a nonconsenting creditor secured by service of a writ of garnishment on the assignee under article 79, Revised Statutes.</p>

<p>1. —Venue—Plea in Abatement.</p> <p>The plea stated, “that this defendant has not contracted in writing to perform any obligation which is the basis of, or in any way connected with this suit in any particular county.” Held, the language quoted negatives the fact that defendant had promised in writing to pay the debt in Coke County, where the suit was brought.</p> <p>2. —Garnishment—Replevy Bond.</p> <p>The replevy bond by defendant in garnishment proceedings is in no sense a pleading, and its execution does not waive any plea otherwise available.</p> <p>ON MOTION FOE BEHEABING.</p> <p>3. —Venue—Acceptance of Draft.</p> <p>Under art. 1194, Rev. Stats., sub. div. 5, it is not necessary that the contract should, in express words, require performance in a particular county. Such performance may be a necessary implication from the context of the instrument. Unqualified acceptance of a draft at the place named as the residence of the drawee makes the debt payable at such place.</p>

<p>Appeal from the District Court of Wood County.</p> <p>Tried below before Hon. E. W. Simpson.</p>

<p>Appeal from the County Court of Eockwall County. Tried below before Hon. E. D. Foree.</p>

<p>Appeal irom the District Court of Delta County. Tried below before Hon. H. C. Connor.</p>

<p>1. —Negligence—Act of God—Question for Jury.</p> <p>The question as to whether the evidence in regard to an accident shows that it was directly caused by an act of God, is one of fact to be determined by the jury, as also whether the accident would have occurred had it not been for the concurrence of defendant’s negligence with the act of God.</p> <p>2. —Same—Concurring Negligence.</p> <p>Where defendant’s negligence concurs with the act of God, and the injury would not have occurred but for such negligence, the defendant is liable.</p> <p>3. —Same—Heavy Rainstorm—Washout of Track.</p> <p>Where the evidence showed a very hard rain which caused the water to wash over a railroad track it could not be said, as a matter of law, that by the exercise of reasonable care, prudence and diligence the company could not have so constructed its culverts as to have prevented its track there from being rendered unsafe for its trainmen by the rain.</p> <p>4. —Same—Contributory Negligence—Sending Man Ahead.</p> <p>Where a rule required that in case of extraordinary rains engineers should make careful inquiry and extra stops and send a man ahead to examine bridges, trestles, etc., and a train running slowly was derailed before it came within 100 yards of a bridge reported dangerous, and the night was dark, it was for the jury to say whether the engineer’s failure to send a man out was contributory negligence, that is, a failure to exercise such a degree of- care as a man of ordinary prudence would have exercised under the same or like circumstances.</p> <p>5. —Same—Degree of Care.</p> <p>An engineer running a passenger train is, as to the matter of his own safety, bound to exercise only ordinary care and prudence under the circumstances.</p> <p>6. —Verdict—Amount of Damages—Locomotive Engineer.</p> <p>Where deceased was a skilled engineer, 45 years old, earning $150 to $200 a month, a verdict awarding to his wife $10,000, to his daughter, 17 years old, $5,500, and to his aged mother, to whose support he contributed $25 per month, $2,000, was not excessive in amount or apportionment.</p> <p>7. —Harmless Error—Admission of Evidence.</p> <p>The erroneous admission of evidence is harmless error where the same evidence has been admitted without oojection or the fact it tends to prove is otherwise conclusively shown.</p> <p>8. —Same—Opinion Where Pacts Shown.</p> <p>A statement by a witness that certain railroad ties were too rotten to be used as such was not prejudicial where the evidence showed that they were rotten through and through and there was no good wood in them.</p> <p>9. —Evidence—Exhibiting Articles in Evidence-</p> <p>Upon an issue as to negligence on the part of a railroad in having rotten crossties in its track which caused a derailment, pieces of rotten wood identified as parts of the ties in question could be exhibited to the jury.</p> <p>10. —Same—Like Rainstorms.</p> <p>Evidence of other rains in that section as heavy as the one causing the injury was admissible to show that the storm was such as might have reasonably been anticipated and provided against.</p> <p>11. —Same—Contributory Negligence—Rules—Derailment of Train.</p> <p>Upon an issue of contributory negligence on the part of an engineer in not stopping his train because of the condition of the track resulting from a heavy rainfall, it was admissible to give in evidence, though not pleaded, a rule of the company in force, requiring section foremen, in case of heavy rainstorms, to at once go over their sections, with danger signals, to ascertain if the track was safe for the passage of trains; etc., there having been no compliance with the rule in this ease.</p> <p>12. —Railroads—Negligence in Construction—Culverts for. Drainage.</p> <p>The statute requiring railroads to provide suitable culverts, etc., in their tracks for the necessary drainage as the lay of the land requires (Rev. Stats., art. 4436) is applicable on the question of negligence not only with respect to the overflow of lands, but also in a case of injury resulting from a wasnout of track through overflow causing the derailment of a train, and a failure on the master’s part to furnish the servant a safe place in which to work.</p> <p>13. —Master and Servant—Safe Place to Work—Assumed Risk.</p> <p>A railroad employe whose place to work is on the road has the right to assume that the company has exercised ordinary care to make it a reasonably safe place for him to do bis work, and unless he knows that this duty has not been discharged, and the danger incident to such failure, he does not assume the risk arising therefrom.</p>

<p>I.—Usury—Stock in Investment Company—Loan.</p> <p>Where M. subscribed for stock in a loan and investment association, agreeing to pay for the same in monthly installments, receiving in return dividends and certain loan privileges, and at the same time applied for a loan secured by a mortgage and a pledge of the stock subscribed for, such transaction could not be condemned as a usurious contract, because M. entered into it solely to secure the loan, unless the association also intended that he should not become a shareholder, and was using the contract as to taking stock merely as a device to cover usury.</p> <p>2.—Same—Principal and Agent—Representations not Binding.</p> <p>Where the agent of the investment association had no authority to make a certain verbal agreement with a borrowing subscriber for stock, his act in so doing can not be held the act of the association unless knowledge thereof was brought home to it and was acted on by it.</p>

<p>1. —Judgment Lien—Foreclosure on Machinery and Realty.</p> <p>Where a mortgagee of sugar mill machinery obtained a judgment for his debt with foreclosure of his lien on the machinery and also on a tract of land on which it had been placed, and having recorded an abstract of the judgment in another county where the land lay, sought a foreclosure of the judgment lien on the entire property, it was error for the court to decree him such a foreclosure as to the land where it was not shown that the machinery was so attached to the realty as to have become a part thereof, and it appeared that, prior to the mortgage foreclosure, the land had been conveyed without fraud to a corporation not made a party to that suit.</p> <p>2. —Deed to Corporation—Agreement for Reconveyance.</p> <p>Where a deed made to a corporation reserved to the grantor the right to reacquire the land at its fair market value in the event the corporation became insolvent and ceased operation, such right was enforceable upon the happening of the contingency and could be asserted against creditors of the corporation seeking to enforce a judgment lien against the land.</p> <p>3. —Foreclosure of Lien—Attorney Fees—Interest.</p> <p>Where in an action to enforce a judgment lien against land and mill machinery thereon the holder of vendor’s lien notes given by the judgment debtor for the land intervened and sought a foreclosure of his prior vendor’s lien, he was entitled to recover interest and attorney fees stipulated in the notes, with foreclosure therefor as well as for the principal.</p> <p>4. —Mortgage Foreclosure—Rentals—Depreciation From Use.</p> <p>Where the parties contemplated that the mortgagor of mill machinery should continue to use it for the purposes for which it was adapted without regard to the existence of the mortgage, the mortgagee can not in foreclosure recover the rental value of the machinery, nor damages for depreciation in its value caused by its ordinary and proper use.</p>

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

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

<p>1. —notes—Action Against Indorser—Pleading.</p> <p>In an action against one sued as an indorser of a note the petition is had on general demurrer where it shows that the time has passed when his liability can be fixed either by suit or protest, and fails to allege any waiver of the formalities necessary to fix such liability.</p> <p>2. —Same—Venue—Codefendant.</p> <p>• Where the suit was brought in the county of the indorser’s residence, and the petition showed no liability on his part because of want of protest or of suit in time, a judgment against the maker of the note, residing elsewhere, could not be sustained over bis plea of privilege to be sued in the county of his residence.</p>

<p>1. —Carriers—Connecting Lines—Venue—Pleading.</p> <p>Where an action for damages to live stock in transportation was brought against several railroads, connecting lines, in a county where one of them was operated, it was not necessary, in order to authorize the joinder of the others under the Act of May 20, 1899, that the petition should have alleged a partnership, a joint contract, or the damages resulting from the negligence of each separate carrier, but only that the transportation was over each of the lines, and that they were the agents of and for each other.</p> <p>2. —Same—Requirement of Notice—Limitation of Liability.</p> <p>A provision in a contract of shipment of horses requiring the shipper, as a condition precedent to his right to recover damages for injury to his stock, to give notice in writing of his claim for the damages before removing them from the cars, is a limitation of the common law liability of the carrier, and by virtue of the statute is not enforceable. Rev. Stats., art. 320.</p> <p>3. —Same—Special Damages—Notice.</p> <p>Where it was not shown that the defendant carrier was notified that plaintiff, the shipper, intended to use the horses transported for the purpose of putting in a crop, he could not recover damages resulting from his failure to put in as much of a crop as he otherwise would have put in, nor for the value of extra time and trouble in moving the crippled horses from the point of destination to the place where he was putting in the crop.</p> <p>4. —Same—Measure of Damages.</p> <p>The correct measure of the damages to the horses in transportation was the difference between their market value in the condition in which they would have arrived at their destination but for the negligence shown and their market value in the condition in which they did arrive there.</p> <p>5. —Same—Market Value—Opinion.</p> <p>An estimate by a witness as to the difference in the market value of the • horses at the place of destination, based on his knowledge of the market value at another place, was not admissible in evidence.</p> <p>6. —Same—Damages—Enhancement of Injury—Expense of Preventing.</p> <p>The horses having been delivered by the carrier to plaintiff at their destination in an injured condition, it was his duty to exercise reasonable care and prudence to avoid further loss or enhancement of damages, and hence he should recover the value of the time and medicine devoted to that purpose, should the jury believe that he acted in the matter as a man of reasonable prudence.</p>

<p>Carriers of Cattle—Release of Damages—Joint Defendants.</p> <p>Where, in an action against several railroad companies for damages to cattle shipped, a claim for injury to the cattle before the shipment began was made and pleaded only against the initial carrier, and it was alone liable for such damages, a release of the other defendants from liability did not support a plea of accord and satisfaction on the part of the initial carrier as against such claim of plaintiff for the damages to the cattle resulting from the failure to furnish cars for the shipment in due time.</p>

<p>1. —School Land—Substitute Purchaser—Piling Transfer.</p> <p>One who has bought school land from the original purchaser from the State and has filed with the Commissioner of the General Land Office a proper transfer of the land, is entitled, by virtue of the statute, to become a substitute purchaser. Rev. Stats., art. 42181c.</p> <p>2. —Same—Record of Transfer.</p> <p>The fact that the transfer had not been recorded in the county where the land lies was a mere irregularity which would not defeat the right and title of the transferee.</p> <p>3. —Same—Cancellation of Award—Land on Market—Presumptive Evidence.</p> <p>Wnere school land was awarded to J., and the Commissioner thereafter canceled the sale because J. was not an actual settler on the land, but the land was again awarded to him on a second application, the title of one who claimed through a subsequent transfer from J. could not be defeated on the ground that the cancellation of the first award had not been certified to the County Clerk and the land again formally placed on the market. The first award affords presumptive evidence that J. was then an actual settler on the land, and there is no evidence in the record to the contrary. If the cancellation be considered at all, then it shows that J. was not an actual settler at the time of the first award, and that therefore such award did not take the land off the market, and hence it was- on the market at the time of the second sale.</p> <p>4. —Assignment of Error—Reference to Record.</p> <p>Where an assignment of error assails the verdict as being unsupported by the evidence, and in support thereof appellant merely refers the court to the “statement of facts” for the evidence, the assignment will not be considered over objection that it does not comply with the rules.</p>

<p>Appeal from the District Court of Midland. Tried below before Hon. J. H. Beall, Special Judge.</p>

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

<p>1. —Notes—Ratification of Signature—Evidence.</p> <p>Where defendant, whose name appeared to the note sued on as surety for his son, when written to by the payee to know if his signature was genuine, made no reply, but told his wife to answer the letter as she wished: that he would not have anything to do with the matter, and she answered that defendant was standing for his son and would pay the note if he did not, such letter was admissible to show a ratification by defendant of his previously unauthorized signature.</p> <p>2. —Same—Estoppel by Silence.</p> <p>Defendant’s silence and failure to answer plaintiff’s letter, thus consciously permitting her to deal with the son as though defendant’s signature had been regularly obtained, required that the case should also have been submitted to the jury upon the issue of estoppel.</p>

<p>• Appeal from the County Court of Hardeman. Tried below before Hon. W. J. Jones.</p>

<p>1. —County School Land—Conveyance—Consideration.</p> <p>A sale of the school lands of a county made upon a consideration in part other than money, such as services in locating the land, is invalid and ineffectual to pass the title.</p> <p>2. —Same—Deed by County—Seals.</p> <p>A deed of county school lands executed by the County Judge and three of the County Commissioners, pursuant to an order of the Commissioner’s Court, and properly acknowledged by them, is not invalid because the signatures are not attested by a seal.</p> <p>3. —Same—Illegal Consideration—Notice.</p> <p>Where a county conveyed 2952 acres of its school lands to B., the deed being invalid because its consideration was B.’s services in locating its school lands, and thereafter the county conveyed the same land to R., a vendee of B., for a recited consideration of $500, which -was in fact paid by R., such latter-deed was invalid if R.’s equities, as vendee of B., entered into and constituted a part of the real consideration, and if R. knew the fact, or had knoAvledge of such facts as put her on inquiry, even though she practiced no fraud or deceit in obtaining the deed.</p> <p>4. —Same—Innocent Purchaser.</p> <p>Since there was nothing in such second deed to R., or in the order, of the Commissioner’s Court authorizing it, indicating that any consideration other than the $500 in money entered into the transaction, R. took the apparent title, and one purchasing from her in good faith for an adequate consideration and without notice was protected against the defect, resulting from the fact that an unlawful consideration (her equities) formed part of the consideration of the deed to her.</p> <p>5. —Same—Purchaser with Notice Protected.</p> <p>The grantee of R. being entitled to protection as an innocent purchaser, could convey to one who had notice, and the latter would be protected on his vendor’s account.</p> <p>6. —Same—Record Notice.</p> <p>The fact that the deed records showed the original deed from the county to B. as made upon an unlawful consideration (locative services) did not of itself charge R.’s grantee with notice that the later deed made by the county to R. and reciting only a money consideration was in fact made partly upon another consideration, viz., B.’s equitable claim for services in locating the land. Rev. Stats., art. 4652.</p> <p>7. —Same—Possession of Tenant as Notice—Attornment.</p> <p>At the time R. conveyed the land K. was in possession as -her tenant under a five years’ lease, but had also secured a lease from the county which included this land with its other school lands. This latter lease was not recorded until after R. had conveyed, and K. continued paying rent to R. Held, that IC.’s possession did not charge R.’s grantee with notice of the lease by the county or its adverse claim.</p> <p>8. —Same—limitation Against County.</p> <p>Under article 7, section C, of the Constitution the defense of limitations is not available against a county in an action brought by it to recover county school lands illegally conveyed by its Commissioner’s Court.</p>

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

<p>1. —Parol Gift of Land—Specific Performance.</p> <p>Mere possession of land under a parol gift does not entitle the donee to a specific performance and a divestiture of title out of the donor. In such cases the making of permanent and valuable improvements is also necessary.</p> <p>2. —Limitations—Adverse Possession—Issue for Jury.</p> <p>Where plaintiff claimed land by parol gift from defendant and by limitation under the ten years’ statute, and possession for over twenty years was shown, the mere fact that eight or nine years before the trial she permitted defendant, without objection, to remove the cabin on the lot to an adjoining part of the lot which he bad sold to another, did not warrant the court in assuming as a matter of law that she was not holding the remainder of the lot adversely, and the issue of limitation was for the jury.</p>

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

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

<p>Lien—Contract—Release of Debt.</p> <p>Plaintiff, claiming a vendor’s lien on land sold by him, for which the vendees executed the notes sued on, agreed with them upon a reconveyance of the land and release of their personal liability on the notes, without prejudice to the further lien, claimed against a third defendant, upon a house built on the premises conveyed and subsequently removed to adjoining premises owned by such third defendant. Held, that the discharge of the debtors from the indebtedness for which the lien was claimed released the lien, which could no longer be enforced against the building in question.</p>

<p>1. —Agency—Written Contract.</p> <p>Where an agent suing for commission on orders which his principal had failed to fill relied upon letters as authorizing sales of the character he had made, which were not contemplated by the original contract, the letters being of doubtful construction and effect, there was no error in the court refusing to construe them as authorizing such contract and in leaving the question to the jury.</p> <p>2. —Same—Request for Charge.</p> <p>It is questioned whether the appellant can complain of the failure of the court to construe correspondence as constituting a written contract in the absence of , a request for such instruction.</p>

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

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

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

<p>1. —Railroads—Engine Frightening Horse Near Track.</p> <p>Railroad companies are not called upon to keep a watch for people near the track in vehicles, although it be at or near a station or public crossing, and owe no duty to a person whose horse might become frightened unless its employes knew of the presence of such person, and caused the locomotive to emit unusual and unnecessary noises.</p> <p>2. —Same—Negligence—Fact Case.</p> <p>Evidence considered and held not to show negligence on the part of a railroad company, while switching ears, in frightening a horse near the track, it not appearing that its employes saw the horse or acted in other than the usual way in operating the engine and moving the cars.</p>

<p>1. —Bounty land Warrant—Identity of Grantee—Evidence—Common Repute.</p> <p>Where the issue was as to whether a certain deceased person was the grantee named in a bounty land warrant and those who could have testified to his .military service from their own knowledge were dead, the fact that he so served could be proved by the general opinion of those where he lived and was known for years up to the time of his death; and in any event the admission of such evidence was not prejudicial error where testimony of the same character was admitted without objection.</p> <p>2. —Same—Harmless Error.</p> <p>Where all the testimony tended to show that the person who was claimed to be the grantee in the certificate did serve in the war of the Texas revolution, the admission of the testimony of a witness that he heard his father speak of such person being brave and daring to want to go to war while so young, if error, was harmless, such expression having little bearing on the issue of whether he did go to the war.</p> <p>3. —Same—Evidence of Identity.</p> <p>The testimony of a witness that she knew her husband during their married life bought the land located by virtue of the bounty warrant from a certain person, and that by refreshing her memory by referring to the deed she recalled, without aid of the deed, the fact that such purchase was in 1872, was admissible to identify such person as the claimant of the land at that time.</p> <p>4. —Same—Archives—Proof of Pension.</p> <p>As tending to show that the party under whom plaintiff claimed as the true grantee in the bounty warrant was the grantee therein, plaintiff could show, by copies of the archives of the Comptroller’s office, certified to by the custodian thereof, an application by such party for .a pension under the Act of August 13, 1872, with the accompanying proof, including an official certificate which entitled him to pay as a soldier in the Texas revolution.</p> <p>5. —Same.</p> <p>For the same purpose a copy of the muster roll of Fannin’s command, on which such party’s name appeared, certified to by the Adjutant General as a ■correct copy of an instrument filed in his office, was admissible in evidence under art. 2308, Rev. Stats.</p> <p>6. —Same—Harmless Error.</p> <p>Where the date of the arrival in Texas of Captain Shackelford’s company of Alabama volunteers (in 1836) was shown by undisputed testimony, the exclusion of proof of such date by Foote’s History of Texas, if error, was harmless.</p> <p>7. —Evidence—Historical Treatises.</p> <p>Historical treatises involving matters of general interest may be admitted in evidence, but as to matters of a private nature that affect only a few individuals, they are not ordinarily admissible without proof of such matters.</p>

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

<p>1. —City—Diverting Water by Street Curbing—Damages.</p> <p>Where a city in paving and grading streets diverts the natural flow of surface water therefrom into another street and by reason thereof and of a failure to provide sufficient outlets for the water, the premises of an abutting property owner are flooded and damaged, the city is liable for the injury.</p> <p>2. —Same—Notice of Defect in Street.</p> <p>A city charter provision protecting the city from liability for negligent failure to repair a street except for such damages as may accrue after ten days’ written notice, is no bar to claims for injury due to an affirmative act of the city authorities.</p> <p>3. —Same—Notice not Limiting Right.</p> <p>The fact that the property owner gave notice to the city that the curbing had sunk and the improvement was out of repair, held not to preclude him from predicating his course of action for damages on the city’s act in diverting the water in the first instance.</p> <p>4. —Pleading—Matter of Inducement—Harmless Error.</p> <p>Failure of the court to sustain an exception to matter improperly pleaded by plaintiff was not reversible error where the matter was pleaded merely by way of inducement, and was not relied on as the proper measure of damages.</p>

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

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

<p>Appeal from the County Court of Haskell. Tried below before Hon. D. H. Hamilton.</p>

<p>Appeal from the County Court of Jones. Tried below before Hon. J. B. Thomas.</p>

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

<p>1. —Damages—Breach of Contract—Prevented Profits.</p> <p>Where defendant was sued for failure to deliver an ice machine by March 23, 1898, as contracted, and plaintiff claimed as damages the loss of profits on sale of ice under a contract to supply a third person with ice during that season, but there was no evidence as to the time required after the stipulated date for the delivery of the machine to install and test it, as provided for in the contract, there was no basis for correctly determining the amount of the damages so sustained.</p> <p>2. —Principal and Agent—Denial of Authority—Pleading.</p> <p>Where defendant’s answer denied the authority of an agent to make certain material changes in the printed proposals made to plaintiff and accepted and declared on by him as the contract, and plaintiff made no replication to this defense, it was error, it seems, to allow plaintiff to prove that defendant had knowingly permitted the agent to hold himself out as defendant’s manager, with authority to execute such contracts.</p> <p>3. —Same—Estoppel.</p> <p>To make one liable for the unauthorized acts of another, the principal must not only permit the alleged agent to hold himself out as such, but the person dealing with him as agent must be deceived to his prejudice by the false representation; and this fact of estoppel should be pleaded.</p> <p>4. —Same—Evidence—Discrediting Agent.</p> <p>Where there was a material conflict between plaintiff and the agent, letters written by the agent to plaintiff more than .a year after the transaction in question were admissible for the purpose of discrediting the agent as a witness, and should have been limited to that purpose.</p> <p>5. —Damages—Prevented Profits.</p> <p>For failure of the seller to deliver an ice machine the buyer is entitled to recover only the net profits he would have made with the machine, and in arriving at such profits the intérest on the investment, or at least the year’s interest on a deferred payment which plaintiff would have had to pay, together with all necessary expenses, including insurance provided for in the contract, should be taken into account.</p>

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

<p>1. —Negligence—Speed of Train—Proximate Cause.</p> <p>Where a railroad employe was, by reason of a cinder pile in the yards, caused to fall on the track in front of an advancing train, and the evidence tended to show that he would have had time to remove himself from the track if the train had" been running at not exceeding six miles per hour, as required by a city ordinance, this was sufficient to raise the issues that the speed of the train was the proximate cause of the injury.</p> <p>2. —Same—Charge.</p> <p>The omission to charge that the speed of the train was not the proximate cause of the injury unless under all the circumstances ordinary prudence would have admonished those operating the train that the excess of speed over six miles per hour would probably result in injury to some one in the yard, was not error in the absence of a request for such a charge.</p> <p>3. —Same—Issue not Submitted—Charge.</p> <p>Where the petition charged negligence in running the train at an excessive rate of speed and also in allowing a pile of cinders near the track, and the charge submitted as ground for recovery the negligence as to speed and authorized a recovery only if it was found the proximate cause of the injury, the other issue was sufficiently withdrawn, and it was not error to refuse a charge that plaintiff could not recover if his stumbling and falling over the cinder pile was the proximate cause of his injury.</p>

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

<p>1. —Personal Injury—Pleading and Proof.</p> <p>In an action for personal injuries evidence is not admissible to show injuries other than those expressly alleged unless they are the natural and necessary result of those so pleaded.</p> <p>2. —Same—Application of Buie.</p> <p>An allegation of injury to the head, spine and nerves will not Avarrant the admission of evidence showing injury to the eyes and sight.</p> <p>3. —Same—Expert Evidence of Injury—Conclusion.</p> <p>A nonexpert witness Avho had lived near plaintiff and known him a long time was not thereby qualified to give an opinion as to plaintiff’s ability to work after the injury, and the witness’s statement that plaintiff had not been able to do much was inadmissible as being a conclusion.</p> <p>4. —Same—Expressions of Pain—Self-Serving.</p> <p>Evidence that plaintiff, while working with a thresher, was complaining all the time and finally had to quit work, should have been excluded as self-serving, it not being shown what plaintiff complained of, or that the complaints were the expression of present pain then existing as the result of the injuries alleged.</p>

<p>1. —Negligence—Injury to Railroad Employe on Handcar.</p> <p>Evidence in an action for injuries to a railroad section hand in being thrown from a moving handcar, held sufficient to show actionable negligence on the part of the foreman in charge of the car in failing to look out for obstructions on the track.</p> <p>2. —Same—Charge—Defense not Pleaded.</p> <p>It was not error for the court to refuse a requested special charge submitting categorically the theory of the foreman, charged with the duty of keeping a lookout, that he was excusable in not seeing the obstruction because he was then watching some boys approaching the track further on ahead (it appearing that boys had been in th.e habit of placing obstructions on the track), where it had not been pleaded that his attention had been so attracted, but merely that he was doing all in his power to guard against an accident from obstructions, amounting only to a denial of negligence, and the issue of care on his part had been submitted generally in the main charge.</p> <p>3. —Charge—Harmless Error.</p> <p>Where a party presents to the court two special charges on the same issue, he can not complain if the court fails to select and give the one most favorable to him.</p> <p>4. —Same.</p> <p>A party can not complain of an error in the charge which was against the opposing party and could not have injured the complainant.</p> <p>5. —Personal Injury—Contributory Negligence.</p> <p>In an action for personal injuries by a railroad employe, who was treated in defendant’s hospital until duly discharged, evidence showing a collar bone broken and union thereof delayed, and that such resultant condition was due to improper adjustment, or to use before the union took place, did not raise the issue of contributory negligence in failing to properly care for the injuries.</p> <p>6. —Argument of Counsel—Remarks Withdrawn,</p> <p>Where plaintiff’s counsel withdrew his objectionable remarks and also asked the court to instruct the jury to disregard them—defendant’s counsel requesting no charge to that effect—the error was cured, there being no reason to believe that any harm came of it.</p>

<p>1. —Master and Servant—Collision with Pushcar—Contributory Negligence— Assumed Bisk.</p> <p>Evidence in case of section hand injured by collision of train with a push-car, which he -was trying to get off the track, considered and held to support a recovery and justify the refusal of instructions to find for defendant because plaintiff was negligent or had assumed the risk.</p> <p>2. —Assignment of Error.</p> <p>An assignment that the court erred in its charge to the jury, and in each and every part thereof is too general to require consideration.</p> <p>3. —Charge—Request for Specific Instruction.</p> <p>A charge holding a railway company liable for injury to a section hand by collision of a train with a pushcar, which he was trying to get off the track, if the foreman knew of his danger and failed to give him warning, and such omission was want of ordinary care and caused the injury, was not erroneous in omitting the condition that plaintiff was relying on the foreman, or in failing to define ordinary care, in the absence of a request for such definition.</p> <p>4. —Damages—Personal Injury—Charge.</p> <p>Instruction on measure of damages for personal injury, including permanent impairment of earning capacity, considered and held correct and not authorizing double damages.</p> <p>5. —Contributory Negligence—Burden of Proof.</p> <p>The burden of proving plaintiff’s contributory negligence being generally on the defendant, where there were no sufficient circumstances to shift the burden, defendant can not complain of the omission to charge on the subject and the refusal of a charge placing the burden of disproving it on the plaintiff.</p> <p>6. —Omission of Signals—Plaintiff’s Knowledge.</p> <p>Instruction that the omission of signals by an approaching train could not be considered where plaintiff had knowledge of its approach, held properly refused as inapplicable to the state of the testimony.</p> <p>7. —Persons on Track—Presumption of Leaving.</p> <p>A charge that those operating an engine had a right to presume that a pushcar would be removed from the track before collision held properly refused as incorrect as applied to the state of the evidence.</p> <p>8. —Charge—Risks Assumed—Fog.</p> <p>A charge that plaintiff, as member of a section crew, assumed the risk of his employment in all weathers, and there was no negligence in sending them out in a fog, was properly refused as argumentative and on the weight of evidence.</p> <p>9.—Instruction—Mere Accident.</p> <p>An instruction as to the law of injury from mere accident without negligence held properly refused, since such issue was not involved.</p>

<p>life Insurance—Warranty—Evidence.</p> <p>An application for life insurance, made a part of the policy, having warranted the truth of representations therein that the applicant was in good health at the time and had not been treated by a physician for ten years, and the undisputed evidence showing such statements to be untrue, it was error to submit the question of their truth or falsity to the jury.</p>

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

<p>I. —Value—Proof of—Damages—lease—Improvements Destroyed.</p> <p>Where in an action by a landlord against his tenant for damages resulting from the breach of a lease contract in the destruction and removal of improvements that had been on the land at the time it was leased, the evidence showed that neither the land nor the improvements had a market value, plaintiff was entitled to prove and recover the reasonable value of the improvements.</p> <p>&—Same—Opinion—Deterioration.</p> <p>The deterioration in value of such property as houses, fences and other improvements could be established by the opinions of witnesses familiar with such matter.</p> <p>3.—Same—Harmless Error.</p> <p>Error, if any, in admitting such opinion evidence was harmless where, by direct and uncontroverted evidence, it was shown that property of a greater value than the sum found by the jury was completely destroyed.</p>

<p>1. —Divorce—Community Property—Damages for Personal Injury.</p> <p>Where in a suit by the wife for divorce, which was granted, it was found that the parties had no community property, unless it was a claim by the husband for personal injuries received by him after he and the wife had separated by agreement, it was not error for the court to treat such claim as community property and adjudge to the wife a one-half interest therein.</p> <p>2. —Same—Allowance for Support of Child.</p> <p>It was error, however, for the court to enter an order requiring the husband to pay to the wife, who was awarded the custody of their child, a stated sum monthly for its support, such payments to continue until the child should marry or attain majority, since the statutory power of the court in this respect is limited to making such provision for the children pendente lite (Rev. Stats., art. 2987),"and in the final decree it can make such provision only out of the property of the parties. Rev. Stats., art. 2980.</p> <p>S.—Same—Statute Controls—Liability of Father for Child’s Support.</p> <p>The power of the court in divorce matters is limited by and dependent on the statute, but the liability of the father for necessaries for his children continues after the divorce is granted, and may be enforced in the ordinary methods.</p>

<p>1. —Liquor Dealer’s Bond—Constitutional Law.</p> <p>The statute of this State (Rev. Stats., art. 5060g) giving a right of recovery upon a liquor dealer’s bond for selling to a minor is not in violation of the Fourteenth Amendment of the Federal Constitution. Following Douthitt v. State, 98 Texas, 344.</p> <p>2. —Same—Native Wines—Discrimination.</p> <p>The provision in the Liquor Dealer’s Act (Rev. Stats., art. 5060i) exempting native wines in the hands of the producers or manufacturers thereof is not a discrimination against the retail liquor dealer of which he can complain, since such wines in 'his hands for sale are subject to the same regulations as other liquors, and his liability on his bond as such dealer can not be affected thereby.-</p> <p>S.^Same—Damages—Jurisdictional Amount—Pleading.</p> <p>Where in a suit on a liquor dealer’s bond the original petition alleged more than two breaches ($500 penalty for each), but damages were claimed in the sum of $1,000 only, the County Court had jurisdiction, and hence a second petition, filed two years later and alleging only two breaches, did not for the first time set up a case within the jurisdiction, barred at that time by limitations.</p> <p>4. —Same—Pleading—Ad Damnum Clause.</p> <p>The ad damnum clause in a petition fixes the jurisdiction of the court when it depends on the amount of the matter in controversy.</p> <p>5. —Same—Statutory Bond too Onerous—Surplusage.</p> <p>The fact that a liquor dealer’s bond binds not only the maker and his sureties, but also, and in addition to the statute, their heirs and legal representatives, does not render the bond invalid, since an action thereon is penal and does not survive the principal obligor, and the additional matter may be rejected as surplusage.</p> <p>6. —Same—Caption of Act—Gifts and Sales.</p> <p>If the provision in the Liquor Dealer’s Act prohibiting a gift of liquors be inoperative because the matter of gift is not mentioned in the caption, this does not affect the validity of the remainder of the Act, or prevent recovery on a liquor dealer’s bond for breach thereof in selling liquor to a minor.</p> <p>7. —Same—Assignment of Claim for Damages.</p> <p>A claim of damages for breach of a liquor dealer’s bond, or a part of such claim, may under the statute be assigned to an attorney for prosecuting the claim, and such assignment is valid as against those having notice of it, though made before the suit was begun and not filed on the docket. Rev. Stats., art. 4647.</p>

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

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

<p>Appeal from the County Court of Jones. Tried below before Hon. J. B. Thomas.</p>

<p>1. —Cattle Shipment—Damages—Charge.</p> <p>In an action for injury to live stock during shipment it was error for the charge to instruct that plaintiff was entitled to recover such damages as might have resulted from the negligence shown, instead of such damages as proximately resulted therefrom.</p> <p>2. —Same—Rough Handling.</p> <p>“Rough handling” of the cattle by the carrier would not entitle the owner to damages without a'finding that such rough handling was negligently done.</p> <p>3. —Assignment of Error—Exclusion of Evidence—Bill of Exceptions.</p> <p>• Where the bill of exceptions taken to the exclusion of evidence fails to specify the objection sustained by the court, an assignment of error to the court’s action will not be considered.</p>

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

<p>1. —Carrier of Passengers—Stopping Trains at Stations.</p> <p>Railroad companies are not bound, in the absence of contract or statute limiting their rights, to stop all their trains at every station, provided they run a sufficient number of trains stopping at each station to afford reasonable accommodations to the traveling public.</p> <p>2. —Same—Duty of Passenger—Taking Wrong Train.</p> <p>A passenger with means at his command of ascertaining before he enters a train whether it will stop at his destination, and who is not misled into getting on the wrong train, can not recover for a refusal to stop the train at a station at which it is not scheduled to stop.</p>

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

<p>1. —Parties—Action "by Wife—Joinder of .Husband,</p> <p>An action of trespass to try title can not be maintained by the wife alone where there is no allegation that the husband had failed or refused to sue for her or to join her in the suit.</p> <p>2. —Trespass to Try Title—Redemption of land.</p> <p>An action of trespass to try title can not be used to enforce an equitable right to redeem land, but an action for that specific purpose must be brought. See the opinion for averments necessary to be made by a party claiming the right to redeem land from sales made to satisfy incumbrances created before she owned the property.</p>

<p>1. —Written Contract—Parol Evidence Varying.</p> <p>A written agreement complete within itself and showing that plaintiff undertook certain work as an independent contractor can not, in the absence of an allegation of fraud, accident or mistake, be varied by parol evidence that defendant’s manager was to supervise the work.</p> <p>2. —Independent Contractor.</p> <p>Where plaintiff, a painter and paper hanger, contracted with defendant to do certain decorating and painting for a fixed price, plaintiff to furnish all material and employ his own help, he was an independent contractor, and not a servant of defendant, since he represented the latter’s will only as to the result of the work, and not as to the means by which it was to be accomplished. Evidence held not to'show that defendant’s manager was exercising such supervision of the work as would alter the ease and render defendant liable for an accidental injury occurring to. plaintiff in the execution of the work.</p> <p>3. —Negligence—Personal Injury—Unforeseen Accident.</p> <p>Facts held to show in a personal injury case that the injury did not result from negligence on the part of defendant’s manager, but from an accident not likely to have been foreseen by an ordinarily prudent person.</p>

<p>1. —Turntables—Implied Invitation to Children.</p> <p>The peculiar attractiveness of a railroad turntable to children by reason of its being kept unlocked and unguarded near a street so they could play and ride thereon operated as an implied invitation for them to do so.</p> <p>2. —Same—Attractiveness—Evidence.</p> <p>Upon the issue of the turntable being especially and unusually calculated to attract children, so that an invitation to them would be implied, evidence that it was no more attractive than ordinary pools of water near by was irrelevant and incompetent.</p> <p>3. —Same—Charge.</p> <p>In an action for injury to a child while playing on a turntable the court did not err in refusing to charge, there being no evidence to authorize it, that if the turntable was no more attractive to children than many ordinary objects, such as wagons, haystacks, wood piles and plows, the verdict should be for the defendant.</p>

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

<p>1. —Contract—lease—Clause Added—Construction.</p> <p>It would seem that the terms of a clause added to a contract of lease, by the parties, after the lessor signed the instrument and before signature by the lessee, should prevail over provisions in the writing as originally drawn inconsistent therewith.</p> <p>2. —lease—Saloon Business—Adoption of local Option law.</p> <p>A lease which-recited that the building was let for the purpose of condueting a first-class saloon, “and shall not be used for any disreputable purpose,” and providing that the premises should not “be sublet for any purpose other than for conducting a saloon, without the consent of the landlord in writing,” did not limit the use by the lessee to saloon purposes nor release him from liability for rent after the adoption of prohibition of that business under the Local Option Law.</p> <p>3. —landlord and Tenant—Breach—Damages—Findings.</p> <p>Findings of the court on damages for breach of contract of lease by tenant considered and held to sustain amount of recovery on the theory that the measure was the difference between the rent contracted for and the rental value for the unexpired term.</p>

<p>1.—Conflicting Evidence—Peremptory Instruction.</p> <p>Evidence in suit for damages for failure to comply with contract for cutting hay considered and held to be conflicting as to the right to recover, and not to justify the refusal to receive a verdict awarding a part only of the amount claimed by plaintiff and the giving a peremptory instruction to find the full amount claimed.</p> <p>¡Z.—Verdict.</p> <p>A verdict awarding plaintiff damages at five cents per bale on all the hay mowed on certain land, not finding the number of bales so mowed, but assessing the damages awarded therefor, will support a judgment in plaintiff’s favor.</p>

<p>1. —Homestead—Parol Gift—Vendor’s Lien.</p> <p>Where .a homestead was acquired and designated under a parol gift, with possession and improvements on the faith thereof, no valid lien could be created against it under color of a conveyance from the apparent holder of title with a reservation of a vendor’s lien for purchase money.</p> <p>2. —Foreclosure—Homestead—Pleading.</p> <p>Where in a suit to foreclose a vendor’s lien defendant claimed to have acquired title to the land by parol gift, an avoidance of this plea on the ground that it was grantor’s homestead is not available to plaintiff unless pleaded.</p> <p>3. —Error—Amount of Judgment—Motion for New Trial—Costs.</p> <p>Error in failing to render judgment for the full amount of a note sued on may be corrected on appeal; but if it was hot presented on motion for new trial below appellant must pay the costs of appeal.</p>

<p>1.—Landlord and Tenant—Lease—Renewal by Holding Over.</p> <p>The tenant, by holding over without further agreement on the expiration of a lease for years, becomes tenant for another year on the same terms.</p> <p>2.—Same.</p> <p>A charge that if the tenant holding over after the expiration of a lease for a term of years notified the landlord that he would only hold from month to month, or only hold over if certain improvements were made, this was not a. renewal for the year, was error, and was not cured by giving a requested charge that the consent of the landlord or his promise to make the improvements was necessary to give such effect to the holding, since the charges were contradictory.</p> <p>3.—Same.</p> <p>A charge that holding over after the expiration of the term renewed the lease for a year was incorrect where it was a controverted question whether there was not an agreement that the holding should be only from month to month till the landlord determined whether he would make improvements.</p> <p>4. —Same.</p> <p>The mere demand of the tenant that improvements be made would not qualify the effect of his holding over unless the landlord induced him to believe that the request would be complied with.</p> <p>5. —Same.</p> <p>The acceptance of monthly rent by the landlord from the tenant holding over, after notice that without certain improvements he would hold only from month to month, was an implied assent to such holding, and would prevent it having the effect of renewal of the lease for a year.</p>

<p>1.—Contributory Negligence—Railroad Track in Street.</p> <p>One is not guilty of contributory negligence in walking along a railroad track which is situated in a street, although he could, by taking a different street, have avoided the track.</p> <p>i$.—Same—Degree of Care—Charge.</p> <p>Where the action was for the death of a boy killed while walking along the railroad track in a street, a requested charge that if the boy was of ordinary intelligence and experience, and there were no circumstances to take his attention from his surroundings, and he failed to see or hear the train, it would be contributory negligence, was properly refused as requiring a greater degree of vigilance than could be imposed as a matter of law, and as ignoring defendant’s duty and the right of the deceased to expect that his safety would be regarded.</p> <p>3. —Discovered Peril—Charge.</p> <p>Where the charge did not submit the issue of discovered peril the court did not err in refusing a request to instruct the jury that they were not authorized to consider such issue.</p> <p>4, —Railroad in Street—Injury to Pedestrian—Negligence—Charge.</p> <p>Where in an action for the death of a boy killed by a train while walking along a railroad track in a street, the court charged that if defendant’s employes failed to station a man on the end of the (backing) train to keep a lookout, or if they did not give signals or the proper signals of warning by blowing the whistle and ringing the bell, and if the omission to do any one or more of these things was the proximate cause of the death, and that such employe or employes were guilty of negligence as already defined, to find for the plaintiff, such charge was not erroneous as stating the enumerated acts of omission to be negligence as a matter of law, nor as being a comment on the evidence and singling out and giving undue prominence to certain parts of the testimony, nor in permitting the jury to find for plaintiff if defendant omitted to give any of the signals, nor in telling the jury that proper signals were blowing the whistle, etc., notwithstanding defendant might have had a man on the ear to give warning.</p>

<p>1. —Practice on Appeal—Conflicting Evidence.</p> <p>Where there is evidence sufficient to support the finding of the trial judge, the matter of a conflict of evidence will not afford ground for reversing the judgment on appeal.</p> <p>2. —Agency—Proof of.</p> <p>Whatever evidence tends to prove an alleged agency is admissible for that purpose, though it be not full and satisfactory, it being the province of the jury to pass upon it.</p> <p>3. —Agent as Surety.</p> <p>Where an agent signs as an obligor a contract made by him in his capacity as agent, his liability thereon is that of a surety.</p>

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

<p>1. —Trespass to Try Title—Title by Limitation.</p> <p>Where plaintiff and those under whom he claimed had been in continuous, adverse and peaceable possession of the land in suit for more than ten years, claiming, using and enjoying the same, he was entitled to recover it from one who had wrongfully dispossessed him.</p> <p>2. —Same—Possession—Naked Trespasser.</p> <p>Plaintiff’s actual possession, aside from his title by limitation, warranted a recovery against defendants who were naked trespassers.</p> <p>3. —Married Woman—Liability for Torts.</p> <p>The wife is jointly liable with the husband for torts committed by her, such as the destruction of trees and fences on the land of another, and her separate property may be subjected to a judgment rendered against her for her torts.</p>

<p>Jurisdiction—County Court—Amount—Attorney Fees—Interest.</p> <p>Where a note provided for ten percent attorney fees on “the amount due,” in ease of suit, such fees were to be computed on the sum of the principal and interest, and where the principal, plus the attorney fees as so computed at the date of the suit, exceeded $200, the County Court had jurisdiction, the amount in controversy being thus made as much as $200, “exclusive of interest,” although, had the attorney fees not been computed on the interest, the amount would have been below the jurisdictional limit. Rev. Stats., art. 1154.</p>

<p>1. —School land—Award—Presumption of Authority and Regularity.</p> <p>An award of school land to an applicant to purchase is prima facie evidence that at its date the land was upon the market and that all prerequisites to the power of the Commissioner to make a valid sale had been met. In such cases the burden is upon him who seeks to overthrow the award to affirmatively show a lack of such power.</p> <p>2. —Same—lease Presumed Canceled.</p> <p>Proof of a prior lease of the land by the State for a period extending beyond the date of the award is not sufficient of itself to show the award invalid, since the lease might be canceled or waived, and it will be presumed in favor of the award that this was done, unless the contrary is made to appear by proof.</p>

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

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

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

<p>1.—Warranty—Liability for Taxes—Date of Lien.</p> <p>All property owned by a person on January 1 must be listed for taxation by June 1 following, and although the taxes for that year do not become due until October 1, such owner is personally liable therefor, even though he sells the property prior to October 1 and before the amount of the taxes has been ascertained. The lien which the Constitution fixes upon realty to secure the taxes and penalties attaches from January 1. Const,, art, 8, see, 15.</p> <p>2. —Same—Penalties and Costs Accrued.</p> <p>- Penalties and costs which accrue as a necessary consequence of a failure to pay the taxes become a charge on the land, and where the owner has sold the land with warranty he is liable for such penalties and costs equally as for the taxes.</p> <p>3. —Same—Payment by Grantee—Recovery Back.</p> <p>Where a grantee of land holding under a deed with covenants against incumbrances discharges a lien on the land for taxes due by the grantor he is entitled to recover for the accrued interest, penalties and costs which he so pays, as well as for the taxes. Carswell v. Haberzettle, 99 Texas, 1, on certified question.</p>

<p>lease Contract—Breach—Damages—Value of Prospective Crops.</p> <p>Where land was leased to plaintiff to be planted by him in crops, and through breach of the contract he was deprived of the use of the land, he could show, in an action for the damages, the value of the crops that might have been made by him on the land as a basis for estimating the damages. Overruling Lloyd v. Capps, 29 S. W. Rep., 505, and following Rogers v. Me- • Guffey, 96 Texas, 565.</p>

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

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

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

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

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

<p>Appeal from the District Court of Cass County. Tried below before Hon. P. A. Turner.</p> <p>The diligence used to procure the testimony of Dr. Walls, the absent witness, was, that an agent of the defendant had called upon him some time before the term of the court, and procured from him a distinct promise to attend the trial. Transportation was procured and furnished him from Naples to Linden and return and was accepted by the witness. He resided out of the county where the case was tried, and the defendant desired, if possible, his personal attendance, but would have taken his deposition, except for the absolute promise of the witness to come in person. The defendant took a great number of depositions in the. case, but refrained from taking the deposition of Dr. Walls, because it desired and expected him to attend and relied entirely on his promise to do so.</p>

<p>Appeal from the District Court of Bowie County. Tried below before Hon. S. P. Pounders.</p>

<p>1. —Personal Injuries—Pleading—Particularity.</p> <p>Petition in an action for personal injuries held to describe the injuries and suffering of plaintiff with sufficient particularity as against special exceptions thereto.</p> <p>2. —Depositions—Copy—Certification by Clerk.</p> <p>The statute does not require that the copy of the notice of taking a deposition which is made- by the clerk and served upon the opposite party shall be certified to by the clerk. Rev. Stats., art. 2274.</p> <p>3. —Master and Servant—Inspection—Arizona Statute.</p> <p>The sections of the Arizona statutes adopting the common law and making corporations liable for negligent injury to servants (Rev. Stats., Ariz., 1901, arts. 2533, 2767) do not change the common law rule imposing on the master the duty of inspection and making him responsible for the negligence of an inspector to whom he delegates the duty, although the inspector and the injured party are fellow servants.</p> <p>4. —Same—Negligence in Inspection—Question for Jury.</p> <p>The question as to whether there was a negligent inspection, or a failure to inspect, was one of fact for the jury, notwithstanding the inspector testified that he made the proper inspection.</p> <p>5. —Same—Duty of Servant to Inspect.</p> <p>The servant has the right to rely upon the assumption that the machinery, tools and appliances with which he is to work are reasonably safe, and he is not required, to use ordinary care, by inspection, to see that they are safe.</p> <p>6. —Same—Negligence of Servant—Charge.</p> <p>In an action by a bralceman for injuries resulting from his falling from the side of a moving car in attempting to mount it, a hand-rail having given way, it was error for the charge to submit to the jury as a question of fact whether negligence on the part of plaintiff in attempting to mount the car as he did contributed to his injury.</p> <p>7. —Same—Assumption of Risk.</p> <p>Where the master seeks to escape liability on the ground that the servant assumed the risk, he must show that the servant understood and appreciated the risk, since without this his mere knowledge of the danger will not preclude him from recovering.</p> <p>8.—Same—Inspection—Negligence—Jury Question.</p> <p>Where a car had been moved from one place to another between the inspection and the injury, caused by a handhold giving way, and it was shown that the nuts on the handhold fastenings might become loose in running that distance, it was a question for the jury whether the railroad fulfilled its duty in properly inspecting the car the day before the injury.</p>

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

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

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

<p>1. —Community Debt—Presumption—Judgment.</p> <p>A debt incurred by the husband during the existence of the marital relation is prima facie a community debt, and a judgment for the debt will, in the absence of evidence to the contrary, be deemed to have established it as a community debt.</p> <p>2. —Same—Invalid Mortgage on Homestead.</p> <p>A debt is not rendered illegal or unenforceable by reason of the fact that a mortgage given to secure it was invalid because it covered homestead property and the wife did not join therein; nor is the debt extinguished by a. foreclosure of such mortgage and a sale thereunder which passed no title to the purchasing creditor the mortgagor remaining in possession undisturbed.</p> <p>3. —Same—Surviving Husband—Power to Convey Homestead.</p> <p>The surviving husband, acting in good faith, may adjust a community debt by assuming the debt of the creditor to another person, and he can sell the community homestead for the purpose of paying the debt, and his deed will convey the interest of the deceased wife.</p> <p>4. —Same—Separation—Repudiation of Marriage.</p> <p>The fact that before her death the wife and husband had separated and treated the marriage as not valid and binding did not affect, as against the wife’s heirs, the validity of the husband’s conveyance of the community homestead, made after her death, to satisfy a community debt.</p>

<p>1. —Railroads—Right of Way Over Public Domain.</p> <p>Where, prior to the Act of 1879 (Rev. Stats., art. 4423) expressly giving to railway companies a right of way through the public domain, a railroad company was by the charter granted to it empowered to construct its road through certain counties and to acquire a right of way therefor, this implied a grant of right of way over such tracts in its route as were a part of the public domain, the statutes providing at that time for the condemnation of private property only.</p> <p>2. —Same—Notice to Grantee in Patent.</p> <p>The railway company having taken actual possession of the right of way before the land was patented and the patent describing the survey as lying on the railroad, the grantees in the patent had notice of the company’s rights and took subject thereto.</p>

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

<p>1. —Principal and Surety—Defense by Principal in Bar—Effect—Appeal.</p> <p>Where in an action against a principal and his sureties the principal establishes a defense in bar, the sureties can not be held bound, and hence on an appeal by the plaintiff from a judgment in favor of all the defendants if a sufficient defense in bar was made out for the principal, errors affecting only the liability of the sureties are immaterial.</p> <p>2. —Secondary Evidence—lost Instrument—Preliminary Proof.</p> <p>Where a witness testified that he and the last custodian of a lost instrument searched for it among the latter’s papers and that it could not be found, secondary evidence of it was admissible without calling such last custodian.</p> <p>3. —Building Contract—Breach—Measure of Damages—Charge.</p> <p>Where a house collapsed as it was nearing completion and the owner completed it according to other plans and at a less cost and sued the contractor for damages resulting from his failure to erect the house in accordance with the original plans, and its consequent fall, it was error for the court to charge that the measure of plaintiff’s damages was the difference between what it cost her to complete the building and the price for which the contractor had agreed to construct and complete it..</p> <p>4. —Same—Harmless Error—General Verdict—Appeal.</p> <p>Such error could not be held harmless because the jury may and could, under the evidence, have found in favor of the defendant upon an issue of liability in the case, since, the verdict being a general one, it can not be determined that the verdict was predicated upon the issue of liability.</p> <p>5. —Same—Sureties on Contractor’s Bond—Change of Plans.</p> <p>Where a bond is conditioned that the principal therein will construct a house according to certain plans, and the plans are materially changed without the consent of the sureties, they are released thereby.</p> <p>6. —Same—Hearsay—Statement by Principal to Surety.</p> <p>Where the principal obligor in a contractor’s bond exhibited to a surety of his therein a set of plans, with the statement that they were the plans referred to in the bond, such statement, if made in the absence of the obligee, was merely hearsay as to the latter and inadmissible, since the fraud of the principal upon his surety could not affect the latter’s liability to the obligee who had no knowledge of it.</p> <p>7. —Same—Change After Sureties Signed.</p> <p>But where there was testimony tending to show that the plans were materially changed after the sureties had signed the bond, and without their knowledge, such evidence of the contractor’s statement was admissible as bearing upon the action of the sureties with reference thereto.</p> <p>8. —Same—Assent to Change of Plans—Agency.</p> <p>Where the obligee in a contractor’s bond personally assented to a change of the building plans originally agreed upon, the question whether a third person, who had assented to the change as her agent, was or was not her agent, became immaterial.</p>

<p>1.—Assignment of Error—Specifications.</p> <p>Where the verdict was upon special issues, 34 in number, an assignment of error that “the court error in rendering the judgment in favor of plaintiff in overruling defendant’s motion for a new trial on the grounds that the verdict is contrary to and unsupported by the evidence in this,” with eleven specifications following, relating to dissimilar issues and supported by a long statement of the evidence without any clear separation thereof as to the different issues, is refused consideration because not a clear and distinct specification of error.</p> <p>2. —Trial on Special Issues—Objection Waived.</p> <p>An objection to the action of the court in submitting the case on special issues and refusing a requested general charge covering all issues, comes too late after verdict, no exeéption having been taken at the time.</p> <p>3. —Reformation of Conveyance—Judgment.</p> <p>Where the action was for the reformation of a conveyance of land made by plaintiff, or, in the alternative, for the recovery of the land, and the jury found on special issues submitted that it was the intention of both parties that plaintiff should convey only two-thirds of the land, and that defendant, at the time the conveyance was executed, induced plaintiff to believe that two-thirds only was conveyed, the proper judgment, as here rendered on appeal, was to give effect to the real contracts of sale, instead of cancelling it.</p>

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

<p>1.—Cattle Shipment—Hearsay—Value—Opinion.</p> <p>Where a cattleman who had worked with cattle a long time accompanied a shipment of cattle to market, his testimony as to their value per head when shipped and his estimate of the damage to them resulting from delay in the transportation was not inadmissible as hearsay nor as opinion.</p> <p>2. —Same—Damage and Market Value—Evidence.</p> <p>Where the witness, after testifying to the value per head of the cattle at the point of shipment and their condition upon arrival at destination, stated that they were damaged $6 per head by the delay, etc., this was but a short method of stating the difference in their market value, and objection to the evidence on the ground that it did not form any basis for assessing the damages was not well taken. Following Railway v. Halsell, 36 Texas Oiv. App. 522.</p> <p>3. —Same—Connecting Carriers—Refusal to Accept Cattle Tendered—notice.</p> <p>Where a connecting railroad refused, without excuse, to receive cattle when tendered to it, and by reason thereof they had to be kept in muddy pens until it afterwards did accept them, it was liable for the damages naturally and proximately resulting therefrom, whether or not it had notice of the condition ,of the pens. Rev. Stats., arts. 4535, 4496.</p> <p>4. —Same—Tender for Shipment—Waiver.</p> <p>Where the connecting road agreed to receive the cattle tendered to it, this was a waiver of any informality or. supposed insufficiency in the tender.</p> <p>5. —Same—Damage on Another Road.</p> <p>A judgment against the defendant roads for damages to a through shipment of cattle will not be reversed because there was evidence tending to show that the cattle received some damages on yet another road, not a party, where there was neither pleading nor proof that plaintiffs were responsible therefor, and the charge restricted the jury to such damages as resulted from the acts and negligence of the defendants.</p>

<p>1. —Carrier of Passengers—Negligence—Several Grounds—Proof,</p> <p>Where the alleged grounds of negligence causing injuries to a passenger were a failure to fasten back the door of a car so as to cause the door to safely stand open; that the catch in use for holding the door open was old and out of repair, and that the train was carelessly and suddenly stopped with great force, throwing the door against plaintiff, proof of some degree of negligence with reference to any one of the grounds alleged entitled plaintiff to recover.</p> <p>2. —Same—Personal Injury—Verdict not Excessive.</p> <p>Where plaintiff, a farmer, had a foot and hip injured and three ribs broken, the injuries being attended with great pain and depriving him of the ability to work for some time, a verdict for $1,250 was not excessive.</p> <p>3. —Charge—Refusal.</p> <p>It is not error to refuse a requested charge which is embraced in the main charge given.</p>

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

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

<p>1. —Will—Undue Influence.</p> <p>Arguments, persuasions, solicitations and entreaties by the beneficiaries of a will, to procure the disposition of his property made by, the testator, are insufficient to constitute undue influence.</p> <p>2. —Harmless Error.</p> <p>Where there was no sufficient evidence to justify the submission of the issue of procurement of a will by undue influence, errors in the submission of such issue will not be ground for reversing a judgment sustaining the instrument.'</p> <p>3. —Will—Alteration—Charge Construed.</p> <p>A charge that any act done by the beneficiary after the execution of a will could not be considered in determining the issues of undue influence or testamentary capacity, could not be understood as denying the right to consider such evidence upon the issue of alteration of the will by the beneficiary after its execution.</p> <p>4. —Will—Probate—Setting Aside—Burden of Proof.</p> <p>In a proceeding to set aside a will after its admission to probate it was proper to charge that the burden of proof was upon the plaintiffs who attacked the will.</p> <p>5. —Husband and Wife—Confidential Communication.</p> <p>On the issue of mental condition of a testator, evidence of a divorced wife that she left him on account of indecency and inordinate sexual propensity, was protected from disclosure as matter of marital confidence.</p> <p>6. —Mental Capacity—Opinion Evidence.</p> <p>Though a nonexpert may give his opinion as to mental capacity, based on facts stated, his opinion that the testator was incapable of control or self-government is inadmissible.</p> <p>7. —Charitable Bequest—Discretion of Devisee.</p> <p>A bequest of all testator’s property not specifically devised to “be divided according to her will between my wife and Buckner’s Orphan Home” is valid as against heirs attacking the will, no question being raised between the wife and the charitable beneficiary.</p>

<p>Appeal from the District Court of Johnson County. Tried below before Hon. Nelson Phillips.</p>

<p>1. —Sheriff’s Sale—Deed—Return—Variance.</p> <p>The title acquired through a sheriff’s sale and deed is not rendered void on collateral attack by a variance between the sheriff’s return and the recitals in the deed as to the date of sale.</p> <p>2. —Sheriff’s Sale—Collateral Attack.</p> <p>Irregularities in a sheriff’s sale, coupled with inadequacy of price, though sufficient to justify setting it .aside on direct proceeding, do not render it void upon collateral attack, as by ordinary suit in trespass to try title.</p> <p>3. —Insolvent Corporation—Trustee—Attachment—Judgment.</p> <p>An attachment, followed by judgment and sale, against the property of an insolvent corporation which has ceased to do business and transferred the property to a trustee for its creditors, passes title to the property as against such trustee, where he was made a party to the suit and interposed no defense to the proceedings.</p>

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

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

<p>Charge—limiting Recovery to Amount Claimed—Medical Expenses.</p> <p>Where in an action for personal injuries to plaintiff’s wife the charge allowed plaintiff to recover only such sums as had been expended for drugs and medical attention for his wife, as a result of her injuries, not to exceed the' reasonable value thereof, it was not error to refuse a requested charge to the same effect, but with the addition that the recovery should not exceed the amount claimed in plaintiff’s petition, there being no evidence of a greater amount paid than the petition claimed.</p>

<p>Appeal from the District Court of Frio. Tried below before Hon. E. A. Stevens.</p>

<p>1. —Mon. Est Factum—Bank Check Pleaded by Defendant—Denial by Plaintiff—Forgery.</p> <p>Where a bank, sued for money deposited with it, plead in defense the payment by it of a check drawn for the money and signed by the plaintiff, the latter could not introduce evidence to show that the check was a forgery in the absence of a sworn plea denying the execution of the check by him or by his authority. Rev. Stats., arts.' 1192, 1193, 1265, 2318, construed.</p> <p>2. —Same—Receipt.</p> <p>The statutory .provision (Rev. Stats., art. 1193) that “it shall not be necessary for the plaintiff to deny any special matter of defense plead by defendant, but the same shall be regarded as denied unless expressly admitted,” does not, in view of the other provisions of the statute, obviate the necessity of plaintiff’s denying under oath the execution of a written instrument pleaded by the defendant and charged to have been executed by plaintiff, and that such instrument is a bank check and in the nature merely of a receipt, does not affect the matter.</p> <p>3. —Same—Evidence of Forgery in Rebuttal.</p> <p>It would seem that the fact that defendant may have first introduced evidence of the genuineness of the signature to the check would not give plaintiff the right, by evidence in rebuttal, to show, without any plea of non esfr factum, that it was a forgery—but the point is not definitely determined.</p>

<p>Deed—Boundary—Construction by Parties.</p> <p>A deed described the lot conveyed as fronting on a certain road sixty-five feet in a straight line. The road curved, so that the lot, if measured by the margin of the road, would have a frontage of less than sixty-five feet. Prior to the time the vendee built on the lot a division line was run, and marked by notches on the fence, which gave the lot a frontage of sixty-five feet; and the vendor having agreed to such division, the vendee constructed his dwelling to such line. Held, that the construction so given to the deed by the parties would control, and the lot would not be limited to sixty-five feet measured by the margin of the road.</p>

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

<p>1. —Hew Trial—Absence of Witness.</p> <p>Where plaintiff went to trial knowing that one of his witnesses was not present, the court did not err in refusing a new trial to procure the testimony of the witness, which appeared important, but was cumulative, and would not necessarily change the result.</p> <p>2. —Same—Cumulative Evidence—Diligence.</p> <p>Where plaintiff was content to go to trial on the evidence at hand, without making any effort to exhaust his sources of proof, he was not entitled to a new trial to procure newly-discovered evidence merely cumulative in its nature.</p>

<p>1. —Contract—Drilling Oil Well—Flow Guaranteed.</p> <p>One who contracted, for a fixed price, to drill an oil well which should be a flowing well, can not recover for a well that did not.flow oil out at the top, although it flowed oil sufficiently near the top to be operated with a pump to advantage—the circumstances surrounding the parties at the time of the contract, and the construction placed by them on it, showing that they understood that the oil was to flow out at the top of the well.</p> <p>2. —Same—Change of Agreement—Pleading.</p> <p>Plaintiff, suing on the contract, could not avail himself of a subsequent agreement, changing its terms, without having pleaded such agreement.</p>

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

<p>Appeal from the County Court of Bosque. Tried below before Hon. B. J. Wood.</p>

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

<p>1.—Practice on Appeal—Bill of Exceptions—Exclusion of Evidence.</p> <p>A ruling excluding evidence will not be revised on appeal where neither the briefs nor the bill of exceptions taken at the time disclose what was the objection which the court sustained.</p> <p>2. —Judgment Lien—Fraud on Creditors.</p> <p>Where, in an action to foreclose a judgment lien on land, it was shown that the land had been purchased by D., the judgment debtor, with the money of H., the defendant herein, but by mistake the deed was taken in D.’s name, and that he had conveyed the land to H. before plaintiff’s judgment was filed and recorded, plaintiff could not recover in the absence of evidence constituting an attack on the latter conveyance as being in fraud of creditors.</p> <p>3. —Deed from Husband to Wife—Separate Property.</p> <p>A deed from the husband to the wife necessarily makes the land her separate estate, whether it specifically so declares or not, since it could have no other effect.</p> <p>4. —Mistake in Deed—Mutuality.</p> <p>Where the issue of mistake vel non, in the execution of a deed in the name of D., as grantee, was between D.’s creditor and a third person, to whom D. had conveyed the land, it was immaterial as to whether or not D.’s grantor shared in the mistake.</p>