Volume 43 — Texas Civil Appeals Reports

<p>1.—Power of Attorney by Husband and Wife—Death of Husband.</p> <p>A power of attorney, jointly and duly executed by husband and wife to sell the wife’s separate property, is not revoked by the death of the husband.</p> <p>i$.—Ratification.</p> <p>The burden of proving ratification is on the party asserting it. There can be no ratification without full knowledge of the facts. Ratification of deed of agent must be by deed of principal. Mere delay in repudiating will not have the effect of ratifying.</p> <p>3.—Powers of Attorney—Strict Construction.</p> <p>Such instruments as powers of attorney must be strictly construed; under no circumstances will the principal be bound beyond the plain import of the language of the instrument. A power to sell and convey does not authorize a conveyance in settlement of adverse claim against principal.</p>

<p>1.—Traveling Salesman—Authority—Evidence.</p> <p>Facts considered, and held to warrant the defendants in assuming, from their course of dealing with plaintiffs through their salesman, that said salesman had full authority to bind plaintiffs by the contract of sale without submitting the same to plaintiffs for their approval.</p> <p>2.—Contract—Repudiation.</p> <p>It is incumbent on a principal to repudiate promptly a contract which his agent may undertake to make, but which is beyond the scope of such agent’s apparent authority.</p>

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

<p>1. —Conditional Sale.</p> <p>When property is conveyed by one person to another under an agreement for a reconveyance upon the payment of a specified sum at some future time, such conveyance will be held as a conditional sale, provided it clearly appears that the right to repurchase is optional with the vendor, and the relation of debtor and creditor does not exist between the parties as to the agreed consideration for such reconveyance. If the consideration for the conveyance is a preexisting debt it must clearly appear that the debt is extinguished, otherwise the conveyance will be held a mortgage and not a conditional sale.</p> <p>2. —Written Instrument—Parol Evidence to Vary.</p> <p>Defendant, at the time the conveyance was executed to him for the land in controversy, gave to plaintiff the following writing: “This is to certify that James Roland this day conveyed to me a tract of one acre of land, and when W. P. Blake pays me $28.20 and interest, and costs of new transfer, I agree to re-convey said acre of land to W. P. Blake on demand.” Held, in the absence of mistake or fraud, parol evidence was not admissible to show that defendant held said land as security for other indebtedness due him by plaintiff than that named in said writing.</p> <p>3.—Homestead—Mortgage of.</p> <p>One who had been divorced from his wife may mortgage the homestead.</p>

<p>Appeal from the District Court of Fort Bend County. Tried below before Hon, James Slyfield, Special Judge.</p>

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

<p>Appeal from the County Court of Baylor County. Tried below before Hon. B. M. Britain.</p>

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

<p>Appeal from the District Court of Montague County. Tried below before Hon. D. B. Barrett.</p>

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

<p>1. —Juror—Challenge for Cause.</p> <p>The fact that a juror is prejudiced against a person who is to be an important witness for defendant is not a statutory ground of challenge for cause; but a challenge for this cause might properly be sustained in the discretion of the court, under art. 3298, of the Revised Statutes, making that a challenge for cause “which, in the opinion of the court, renders the juror an unfit person to sit on the jury.”</p> <p>2. —Cause of Wreck—Expert Testimony.</p> <p>The testimony of a witness for defendant, who was qualified to testify as an expert, “that he failed to find, from examining the wreck, any cause which produced it, and that it often happened in railroading that wrecks occur, and a careful examination fails to disclose any cause for it, and the wreck in which plaintiff was injured was one of that kind,” was not subject to the objection that it was irrelevant and immaterial, and should have been admitted.</p> <p>3. —Pleading of Defendant—Evidence.</p> <p>Where in a suit for personal injuries the defendant pleads contributory negligence on the part of plaintiff, testimony of the plaintiff tending to disprove the charge of contributory negligence is admissible under the pleading of the defendant, though not under that of plaintiff.</p> <p>4. —Exclusion of Testimony—When Harmless.</p> <p>Where it appears from the record that testimony excluded at one time during the trial was admitted at another, the error in the ruling of the court, if any, was harmless.</p> <p>5. —Charge of Court—Construction.</p> <p>The charge of the court should be considered and construed as a whole.</p>

<p>County Depositories—Act Construed.</p> <p>Under- the provisions of the Act of the Twenty-ninth Legislature, page 392, authorizing the selection of county depositories for county funds, when no bid is submitted for the entire amount of the county funds, the Commissioners’ Court has the authority to select a depository for a portion of the county funds, the bid of such depository being for a part only of such funds, and in other respects in compliance with the law.</p>

<p>1.—Proximate Cause—Evidence.</p> <p>In a case where a plaintiff died during pendency of her suit for damages for personal injuries, and the action was continued by her heirs, who made themselves parties, the evidence is held sufficient to show that the proximate cause of the death was not such injury, but sickness from other causes, and the suit held maintainable, following ruling on previous appeal. Ellyson v. International & Gr. N. R. R. Co., 75 S. W. Rep., 868.</p> <p>2. —Proximate Cause—Charge—Definition.</p> <p>On the issue whether death was to be attributed to personal injury as its proximate cause, the evidence showing that it was brought about by a combination of weakened condition from the injuries and of an attack of diarrhoea, the following definition was held not erroneous: “The proximate cause is that which, in its natural sequence, unbroken by any efficient intervening cause, produces the death, and without which it would not have occurred. The remote cause is that which some independent force merely takes advantage of to produce a death which is not the natural and probable effect of such cause.”</p> <p>3. —Damages.</p> <p>A verdict for $2,000 held not excessive in suit for personal injuries to a woman 82 years old, feeble, and incapable of earning anything, but suffering pain therefrom, the suit being a continuation by her heirs of her action pending at her death, and not one for injuries from her death.</p>

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

<p>1. —Revised Statutes, Art. 1357, Construed—Mistake in Judgment.</p> <p>Under the provisions of the statute, a mistake or miscalculation in a judgment can he corrected at any time on application of either party after notice to the opposite party.</p> <p>2. —Execution—Not Necessary that Judgment Provide for Issuance of.</p> <p>It is not essentially necessary to the issuance of an execution that it be provided for in the judgment, and an execution can be issued under a judgment, although not provided for therein.</p> <p>3. —Dormant Judgment—Sale Under.</p> <p>A sale under a dormant judgment is only voidable, and can not be attacked in a collateral proceeding.</p> <p>4. —Limitation—Evidence of Occupancy.</p> <p>Evidence of occupancy considered and held too indefinite to establish title by limitation.</p> <p>5. —Agreement as to Common Source of Title—Effect of.</p> <p>In trespass to try title, an agreement that the father is the common source of title does not preclude the children from showing' that, the land was community property, and claiming through their mother.</p> <p>6. —Purchaser of Legal Title at Execution Sale—Equities—Burden of Proving. •</p> <p>The purchaser of land at a legal and regular execution sale under judgment against the holder of the legal title, becomes vested with the legal title, and the holder of an equity must prove that such purchaser was not a purchaser for value without notice.</p>

<p>Appeal from the County Court of Ellis County. Tried below before Hon. F. L. Hawkins.</p>

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

<p>1.—Assignment of Lease—Rights of Lessor.</p> <p>A contract in writing executed by a lessee of land stating that he “has contracted and sold” to a third party the leased land, is in effect an assignment of the lease, and, there being in the lease a covenant against subletting, was in violation of said covenant as well as the statute against subletting, and was therefore inoperative as against the lessor.</p> <p>2. —Same.</p> <p>The fact that one holding under an invalid assignment of a lease of land offered to lease or purchase said land from the owner at a price probably in excess of its real value, does not exempt such person from liability in damages for preventing the owner from using his land as his ownership entitled him to.</p> <p>3. —Reading Case in Hearing of Jury—Discretion of Judge.</p> <p>The reading to the court in the hearing of the jury of a ease involving the same or similar facts as the case on trial is a matter in the discretion of the trial court, and will not be reversible error in the absence of a showing that such discretion was abused.</p> <p>4. —Issue—Sufficiency of Evidence—Duty to Submit.</p> <p>It is the duty of the court to submit an issue raised by the evidence, although the evidence would not warrant a verdict thereon in favor of the party at whose instance it is submitted.</p> <p>5. —Deprivation of Use of Land—Exemplary Damages.</p> <p>Where the evidence showed a persistent and predetermined effort on the part of a trespasser to prevent the owner from using his property in his own way, it will support a claim for exemplary damages.</p> <p>6. —Improper' Assignments of Error.</p> <p>Assignments of error considered, and held not entitled to consideration because too general and because improperly grouped.</p>

<p>1. —Freight Rates—Necessity for Publication.</p> <p>The freight rates of railroads approved by the Interstate Commerce Commission are not binding upon the public unless posted and published as required by Act of Congress.</p> <p>2. —Routing Shipment—Contributory Negligence—Relevant Testimony.</p> <p>Where the carrier neglected to note on the waybill and shipping contract of a shipment of mules that they were to be unloaded and fed at a certain point en route, as requested by the' shipper, and in a suit for damages for such neglect the carrier plead that the plaintiff was guilty of contributory negligence in not having such omission corrected as soon as discovered after the transportation had begun, the testimony of the plaintiff to the effect that at a station on the route he saw a man in the depot whom he took to be defendant’s agent and called his attention to the omission and suggested that he had better wire about it, was relevant and material on the issue of contributory negligence, and this, whether the man spoken to was or was not defendant’s authorized agent.</p> <p>3. —Carrier—Deviating Shipment—Liability.</p> <p>Where a carrier deviates a shipment from the route designated by the shipper it becomes liable for all damages resulting from its act, whether proximately or not.</p> <p>ON KEHEABING.</p> <p>4. —Insufficient Assignment of Error.</p> <p>An assignment of error which embraces several separate and distinct questions of law will not be considered because too general.</p> <p>5. —Unlawful Intention of Shipper—Ho Defense to Carrier, When.</p> <p>That the shipper had an arrangement with a third party by which the stock was to be unloaded at an intermediate point, and the shipper was to receive from such third party a rebate for the use of the cars from such point to the destination named in the shipping contract, can not affect the right of the shipper to have his stock routed as requested, with the privilege of unloading and feeding at a designated point, upon paying the customary freight rates.</p>

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

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

Tried below before Hon. Jno. W. Goodwin. The jury during their deliberations returned to ask the court whether, if they found a verdict for less than $3,000, the amount claimed in plaintiff’s petition, defendant would then have all the costs to pay. The court instructed them that they had nothing to do with the question of costs. They returned a verdict for $900 and costs.

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

<p>Appeal from the District Court of Newton County.- Tried below before Hon. W. B. Powell.</p>

<p>Appeal from, the District Court of Shelby County. Tried below before Hon. E. A. McDowell, special judge.</p>

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

<p>1. —Filing of Pleadings—Discretion of Court.</p> <p>Where an answer setting up a meritorious defense had been prepared by counsel for defendants and shown to counsel for the plaintiffs several days before the case was called for trial but was not actually filed until that time, and was then filed without protest or objection on the part of counsel for plaintiffs, and where counsel for plaintiffs upon the filing of such answer exhibited for the first time and filed a supplemental petition containing new matter and which necessitated a continuance of the case by the defendants, it was error for the court of its own motion to strike out the answer of the defendants, and force them into trial merely because the replication of the plaintiff’s operated as a surprise and necessitated a continuance of the case.</p> <p>2. —Mechanic’s lien—“Extras.”</p> <p>A mechanic’s lien exists as security for “extras” supplied under the term?/ of the contract, and this, even after full payment of the original contract price, exclusive of such “extras.”</p>

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

<p>1. —Limitation—Ten Years—Claim of Bight.</p> <p>The actual possession of a small part of a large tract of land without claim of right to the entire tract will not support the plea of ten years’ limitation as to the entire tract.</p> <p>2. —Same—Bendition for Taxes—Evidence.</p> <p>An inventory of property rendered for taxation during the period of limitation not containing the land claimed is admissible in evidence as a circumstance tending to show that the party pleading ,tho statute did not claim the land at that time.</p> <p>3. —Same—Same.</p> <p>Although a rendition of property for taxation is in the handwriting of the tax assessor and not of the party rendering the property, still when it comes from the custody of such assessor the presumption of regularity of official conduct makes it competent evidence.</p>

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

<p>1. —Executor—Distribution of Estate—Authority.</p> <p>In the absence of authority conferred by the will an independent executor is without authority to partition the estate among the devisees.</p> <p>2. —Interest of Devisee—Attachment Lien—Partition.</p> <p>The plaintiff claimed the land in controversy under and by virtue of an attachment lien duly foreclosed upon the interest of the defendant in said land as one óf several devisees. Before the will was probated and before the attachment was levied the defendant, by agreement with the executor, the other devisees not being parties thereto or consenting thereto, received from the executor certain personal property at a stipulated valuation, agreeing that the same should be applied on his, defendant’s, part of the estate. Held, that the agreement between the defendant and the executor was not a valid partition of the lands of the estate, and did not prove that the defendant had no other or further interest in the estate.</p> <p>3. —Sale of Land—Independent Executor—Power.</p> <p>Where the will gave an independent executor no express power to sell land of the estate, and it is not claimed that the sale was made for the purpose of paying debts of the estate, the court did not err in refusing to consider an attempted sale of land by the executor.</p>

<p>1. —Delay in Delivering Telegram—Agency—Heading.</p> <p>A. petition which alleged the sending of the following telegram: “Come tp Foreman Stubbs. Come White Fish road: Case important. Rush. Answer. (Signed) W. A. Stubbs;” that the sickness of plaintiff’s wife was the cause of sending the message, and that the sender was plaintiff’s brother, which facts were made known to defendant by the sender, was not subject to demurrer on the ground that it failed to allege or show that the sender was agent for the plaintiff.</p> <p>2. —Charge—Measure of Damage.</p> <p>A charge to find for plaintiff whatever damages may have been “due him” is not reversible error in cases in which the damages recoverable are not capable of exact measurement.</p> <p>3. —Pain—Expert Testimony.</p> <p>An expert may testify that certain conditions shown by the evidence would produce pain.</p> <p>4. —Submission of Issue—Harmless Error.</p> <p>The case being one of negligence or nothing, it was error for the court to submit the issue of a parol agreement modifying the written contract on the telegraph blank.</p> <p>5. —Amount of Claim—Relevant Testimony.</p> <p>. Plaintiff’s suit being' for $1,000 it was error to excluded testimony offered by defendant to show that plaintiff had claimed only $25 before filing suit.</p>

<p>1. —Contract—Rescission—Misrepresentation.</p> <p>Where a contract for sale of ranch property provided for protection of the purchasers against any existing liens on same by depositing the obligations given by them in escrow, to be delivered to the vendor only on his producing releases of such liens, this was the sole remedy of the purchasers, and they could not rescind the contract because of misrepresentations by the seller as to the existence of liens.</p> <p>2. —Evidence—Res Inter Alios.</p> <p>A letter by plaintiff in the suit to his own agent was not admissible against defendant in the absence of evidence to connect defendant with or bind him by such letter.</p> <p>3. —Delivery of Cattle—Tally—Joint Agent.</p> <p>Where, in á sale of ranch property, cattle thereon were to be paid for in accordance with their tallying by one selected as joint agent of the buyer and seller, such tally was the only delivery contemplated, and mistake or fraud in the tally by such joint agent did not afford ground for rescinding the contract unless participated in by the opposite party.</p> <p>4. —Sale of Cattle—Estimated Humber—Fraud.</p> <p>Where it was sought to rescind a sale of ranch property because of misrepresentation of the number of cattle thereon, the contract containing an estimate but providing for ascertaining the exact number by tally, if fraudulent misrepresentation of the- number by the seller was to be submitted as a ground for rescission defendant was entitled to a charge to find in his favor if the representations, though not correct, were fairly and honestly made.</p> <p>5. —Contract—Tally of Cattle Sold—Change in Method.</p> <p>A change in the method of distinguishing cattle tallied in a sale of ranch property from that agreed on by the purchaser, in order to be a ground for rescinding the contract, must be shown to have caused substantial injury to the purchaser.</p> <p>6. —Bank—Deposit—Conversion.</p> <p>A bank to which the purchaser in a sale paid money thereon to the credit of the seller, did not, by appropriating it, with the latter’s consent, to his debt to itself, become liable to the purchaser depositing it, in his suit to rescind the contract and recover back the money paid.</p> <p>7. —Contract—Delivery—Date.</p> <p>On a contract to take, at a fixed price, all of a certain stock of cattle that should be gathered by a named date, the purchaser was not required to take any subsequently gathered.</p> <p>8. —Written Instrument.</p> <p>It is the duty of the court to construe a written instrument and advise the jury as to its effect.</p> <p>9. —Fraud—Mutual Guilt.</p> <p>A party who has overreached another by fraudulent representations can not avoid rescission of the contract by showing that his adversary attempted to do even so to him.</p>

<p>1. —Cold Waiting Room—Subsequent Illness—Prima Facie Case.</p> <p>Plaintiff’s wife went to defendant’s dépot to take one of its trains at 2:30 in the morning on January 23. The night was cold and bleak. Because the depot was closed and locked she was obliged to stand outside for 20 minutes. When the waiting room was opened there was no fire in the stove, and the train being late she waited in the cold room 40 minutes longer. Immediately thereafter she suffered from sore throat, pains in the chest, rigors and fever. Held, the evidence made a prima facie ease as to the cause of her illness.</p> <p>2. —Physical Pain—Mental Pain.</p> <p>The general rule is that from physical injury and pain, mental suffering will be implied without further proof.</p> <p>3. —Waiting for Delayed Train.</p> <p>Defendant’s train being late and plaintiff’s wife not being advised when it would arrive, she had the right to remain in the waiting room until the train did arrive, and in doing so she was not guilty of contributory negligence.</p>

<p>Contract By one Person for Another—Statute of Frauds.</p> <p>Where the petition alleged that the contract sued on was executed in the name of W., but that the same was in fact the contract of the defendant, and was executed By W. as defendant’s agent, and for defendant’s benefit, and that the lumber sold under said contract and delivered to W. was in fact sold and delivered to defendant under its 'express agreement and promise to pay for the same, that provision of the statute of frauds which requires an agreement to answer for the debt, default or miscarriage of another to be in writing and signed by the party sought to be charged therewith, has no application.</p>

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

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

<p>Trespass to Try Title—Jurisdiction—Venue.</p> <p>The District Court has jurisdiction to try a case of trespass to try title for land situated in another county, and it is error to dismiss such case on demurrer questioning the jurisdiction. The question was one of venue only and to be raised by plea of privilege.</p>

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

<p>Appeal from the County Court of Montgomery County. Tried below 1 before Hon. Jas. T. Rucks.</p>

<p>1. —Garnishment—Replevy Bond—Defendant Debtor not Estopped to Gnash</p> <p>Writ.</p> <p>A defendant debtor who has obtained possession of the garnished fund by ■ giving a replevy bond is not estopped thereby from moving to quash the writ of garnishment. The statute expressly authorizes him to make any defense that the garnishee could make.</p> <p>2. —Same.</p> <p>Sayles’ Revised Statutes, art. 225, construed. Jones v. Bull, 90 Texas, 194, distinguished.</p>

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

<p>Killing of Dog by Railway Train.</p> <p>Facts considered, and held insufficient to show negligence on defendant’s part, or if negligence, that it was the proximate cause of the killing.</p>

<p>Garnishment—Jurisdiction—Defective Writ.</p> <p>The validity of a writ of garnishment depends upon pursuing the steps prescribed by law. A garnishee can not accept service,- or voluntarily answer, or waive defects so as to affect the right of the defendant in the original suit. A writ of garnishment, in which the date on which the garnishee was required to appear arid answer, was left blank, was void, and conferred no jurisdiction on the court over the property of the defendant in the hands of the garnishee.</p>

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

<p>Urban Homestead—Detached Lot—Casual Use—Insufficient Evidence.</p> <p>If a vacant detached lot in a town or city is principally used by the head of a family as a horse lot, cow lot or garden in connection with the home, it partakes of the exemption attaching to the residence; but the use upon which the exemption is predicated must be the principal use, and not a mere incidental or casual use. The fact that the agricultural products from the lot were sold and the money used to support the family will not make the lot a part of the homestead. Where the evidence showed that the husband was a saloonkeeper; that the cultivation of the lot in question was not his business; that the lot was rented to tenants on shares or cultivated mainly in staple crops like corn and cotton by his procurement, or was used occasionally for the pasture of his horses, cows and calves, it was manifest that the use of the lot in connection with the home was only casual, and such lot was therefore not exempt as a part of the homestead.</p>

<p>Error from the District Court of Matagorda County. Tried below before Hon. Jesse Matthews.</p>

<p>1. —Defective Briefs—Assignments not Considered.</p> <p>When assignments of error involving distinct and independent questions are merely copied into the brief and submitted as propositions, with a statement at the foot of each, “See statement of facts, ante,” referring to a preliminary statement of the facts in the brief, such assignments will not be considered.</p> <p>2. —Rental Contract—Waiver of Forfeiture.</p> <p>Where a written rental contract contained a provision for reentry by the landlord in case of default in payment of rent when due, a demand for the rent after default was a waiver of the forfeiture.</p>

<p>Appeal from the District Court of Eastland County. Tried below before Hon. J. J. Butts, Special Judge.</p>

<p>Appeal from the County Court of Erath County. Tried below before Hon. M. J. Thompson.</p>

<p>1. —Appeal—Absence of Statement- of Facts.</p> <p>In the absence of a statement of facts in eases where the judgment is authorized by the pleadings, the ruling of the court upon special exceptions, in giving and refusing charges and in receiving or excluding evidence will not be reviewed.</p> <p>2. —Same—Diligence.</p> <p>The failure or refusal of an official stenographer to prepare and file upon request of either party a transcript of the testimony on the trial, would be cause for reversal upon a proper showing; but before such sequence would follow it must be made to appear that the complainant was not himself guilty of negligence in failing to compel the clerk by mandamus to perform his duty, or failing in this, to have secured and filed a statement of facts in the usual form.</p>

<p>1.—False Imprisonment—Authority of Officer.</p> <p>Under the provisions of section 1014 of United States Compiled Statutes of 1901, a justice of the peace of Clay County, Texas, upon complaint filed with him charging the offense of assault with intent to murder in the Indian Territory, was empowered to issue a warrant for the arrest of the plaintiff, and the defendant, the sheriff of Clay County, was authorized and it was his duty to arrest the plaintiff, charged with said offense, and to take him before one of the officers named in said statute for hearing.</p> <p>2. —Bail—Section 1015, U. S. Compiled Stats., 1901, Construed.</p> <p>Under the provisions of section 1015, United States Compiled Statutes of 1901, only the judicial officer having jurisdiction to hear the complaint, and not the officer making the arrest, has authority to grant bail.</p> <p>3. —Mistaken Authority—Immaterial.</p> <p>The fact that the justice of the peace was mistaken in supposing that he was authorized by the State statutes to issue the warrant for the arrest of the plaintiff was immaterial since he was fully authorized by the United States statutes to do so.</p> <p>4. —Defective Complaint—Immaterial.</p> <p>The failure of the officer issuing the warrant of arrest to insert in the complaint the date of the commission of the offense would not render the sheriff who signed it liable for false imprisonment.</p> <p>5. —False Imprisonment—Damages—Charge.</p> <p>The plaintiff necessarily suffered injury and was entitled at least to nominal damages where the sheriff placed him in jail for forty hours instead of taking him at once before the nearest judicial officer for bail, and it was error for the court to submit the question of injury vel non to the jury.</p> <p>6. —Same—liability of Sureties.</p> <p>If the sheriff was guilty of false imprisonment his bondsmen were liable.</p>

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

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

<p>1. —Mistake in Deed—Description—Agent—Sub-agent.</p> <p>A resident of another State owned a number of lots in a town in Texas; for the sale of said lots she appointed as her agent a party who did not live in said town and who, she must have known, could not give his personal attention to all the details in making sales; said agent, without express authority from the owner, appointed a local sub-agent to perform such merely ministerial acts as pointing out on the ground the lots to be sold; receiving offers to purchase and transmitting the same to the agent; and informing purchasers as to the proper description by number on the map of the town of the lots pointed out. Held, the power of the agent to delegate to the sub-agent the performance of such acts could be implied from his own agency; the acts of the sub-agent would be binding on the principal, and the mistake of the sub-agent in the description of a lot sold and conveyed by the principal would be held the mistake of the principal.</p> <p>2. —Same—limitation.</p> <p>Against the right to correct a mistake in the description of land in a deed limitation will begin to run from the time the mistake was actually discovered, or from such time as by the exercise of reasonable care and diligence it might have been discovered. This is ordinarily a question of fact for the jury.</p> <p>3. —Deed—Parol Sale.</p> <p>Where by mistake in the description in a deed an entirely different tract of land is conveyed from the one actually bargained for and intended to be conveyed the transaction can not be treated as a parol sale of the land intended to be purchased.</p> <p>ON BEHEABING.</p> <p>4.—Deed—Misdescription—Equitable Rights.</p> <p>If a purchaser goes into possession of land bargained for and. intended to be purchased, pays the purchase money and makes valuable improvements upon the faith of his contract, his right in equity to claim the benefit of such parol contract of sale will not be affected by the fact that a deed was executed which by mistake conveyed an entirely different tract of land.</p>

<p>1. —Contract—One Dollar Consideration.</p> <p>The payment of one dollar as a consideration for the execution of a contract is a mere nominal consideration and is not of itself sufficient to support the contract.</p> <p>2. —Unilateral Contract.</p> <p>A contract which is unilateral and which places no obligation on one of the parties thereto is without consideration and not enforceable. •</p> <p>3. —Lease Contract, Valid.</p> <p>A contract which binds the lessee unconditionally, and not at his option, to do specified work within a specified time upon the leased premises, is not unilateral or unenforceable for want of a consideration. The fact that the lessee can not be compelled to do the specific work agreed to be done by him, and that the remedy by suit for damages would prove inadequate, is immaterial. The lessor can not complain of a contract which he deliberately entered into.</p> <p>4. —Same—Cases Distinguished.</p> <p>A contract of lease which imposed upon the lessee an unconditional obligation to sink one or more wells on the leased lands within eighteen months and to commence work on the first well within six months from date of contract, and which allows the lessee no option in the matter, is valid and enforceable; and the fact that the lessor reserves' the right to terminate the lease upon default on the part of lessee, does not render it otherwise. The carca of Hodges v. Brice, 74 S. W. Rep., 590; Emery v. League, 72 S. W. Rep., 606; Roberts v. McFaddin, 74 S. W. Rep., 105; National Oil Co. v. Teel, 95 Texas, 586, discussed and distinguished.</p> <p>5. —Same—Sufficient Consideration.</p> <p>A release by the lessee of a part of the land embraced in the first contract is a sufficient consideration to support a second contract based upon and growing out of the first; and a release of all rights under the second contract was a sufficient consideration to support a third contract to convey a part of the leased land and pay a certain sum of money.</p> <p>6. —Same—Same.</p> <p>Agreements made in good faith in compromise of claims, even though of doubtful validity, should be enforced.</p> <p>7. —Money Demand—When Due—Contingency.</p> <p>Where in the settlement of business transactions the defendant placed in plaintiff’s hands a certain tract of land to be sold by him, and agreed to pay plaintiff a certain sum of money out of the proceeds of the sale of said land, such sum is not due until the land is sold.</p>

<p>1. —Release of Damages—Fraudulent Representations.</p> <p>On the question whether a release of her claim for damages was procured by fraudulent representations made to plaintiff her testimony that no such representations were made or induced her to sign, was not conclusive against her where there was other evidence of their making and effect, and her impaired reason, occasioned by the injuries may have warranted a belief by the jury that she did not recollect what took place.</p> <p>2. —Argument—Charge.</p> <p>An unwarranted argument by counsel that a contract relied on by defendant as a release of damages was void under the statute of frauds should call for an instruction from the court correcting its erroneous effect.</p> <p>3. —Fraudulent Representations—Knowledge.</p> <p>A settlement, though induced by false representations by defendant’s physician as to the extent of plaintiff’s injuries is not to be set aside therefor unless the claim agent acting for defendant in the matter knew and availed himself of such representations by another or acted in conspiracy with him.</p> <p>4. —Fraudulent Representations—Falsity.</p> <p>Statements by a claim agent that settlement must be made now or the defendant would not thereafter take it up, and better terms could be had now than in the future must be shown to have been false to constitute ground for avoiding the contract.</p>

Tried below before Hon. Sam. E. Scott. Two suits, afterwards consolidated, were brought by Hunter against Gage for pasturage of cattle and foreclosure of a lien on them therefor. Gage and his sureties gave bond to answer for the claim and lien and sold or removed the cattle. Hunter transferred his cause of action to Drought & Co. and Harlan, and they intervened as owners of the claim.

<p>County Treasurer—Commissions.</p> <p>B. being county treasurer, the county endeavored to issue bonds to pay off a judgment, against it, but on account of such judgment the approval and registry of the bonds was refused by the State officers. The county then procured a bank to buy and cancel the judgment. B. was succeeded in the office by E., after which the bonds were issued and sold and the bank paid out of the, proceeds. Held (1), that the facts supported a finding that the transaction constituted a purchase of the judgment by the bank, and not a loan by it to the county, and that B. was not entitled to commission on the sum paid, as on money received and paid out by him as treasurer. (2) The county not appealing from so much of the judgment as allowed a recovery of the commissions by E., B., as appellant could not complain of the judgment on the ground that E.’s claim had not been first presented to the Commissioners’ Court.</p>

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

<p>1. —Venue—“local Agent” Defined.</p> <p>By agent or representative as used in section 25 of art. 1194, of the Revised Statutes, is meant a fixed or permanent agency in the county in which the suit is instituted; and by the term “local agent” used in article 1223 is meant one who serves his principal in a certain, fixed locality. An attorney at law is not such agent.</p> <p>2. —Same—“Accrued” Defined.</p> <p>The word “accrued,” as used in the statute, means “arose,” and suit may be brought in the county in which the cause of action or a part thereof began to have a legal existence. Facts considered, and held, that the court erred in dismissing plaintiff’s suit.</p> <p>Appeal from the District Court of Matagorda. Tried before Hon. Wells Thompson.</p>

<p>1. —Will—Construction—Life Estate.</p> <p>A testatrix provided by her will as follows: “I want what I have to be equally divided between my five children, namely: V. E. C., M. F. 0., W. B. C., B. F. B. 0., L. L. C. I want L. L. C. to give bond for the amount he gets. I want his part for him for his life, and at his death, if he dies without lawful children, I want his part ■ paid to my two grandchildren, B. W. 0., W. 0., D. J. C.’s children.” Held, said will gave to L. L. C. only a life interest in one-fifth of said estate, with remainder to the grandchildren named.</p> <p>2. —Same—Adopted Heir.</p> <p>L. L. C. died without children. After the death of the testatrix he adopted a minor as his heir. Held, the adoption of such minor could not defeat the devise in remainder to the grandchildren under the terms of said will.</p> <p>3. —Debts Due by Life Tenant—Remainderman.</p> <p>The one-fifth interest in the estate devised to the grandchildren in remainder could not be charged with the debts due by the life tenant to the testatrix. A remainderman takes directly from the testator, and not through the life tenant.</p>

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

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

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

<p>Appeal from the County Court of Bell County. Tried below before Hon. W. R. Butler.</p>

<p>Hallway—Overflowing Land—Negligence.</p> <p>The right to recover damages for flooding plaintiff's land, caused by construction of a railway, is not dependent on negligence in the construction. It is given by the statute (Eev. Stats., art. 4436), wherever the company fails to construct the necessary culverts and sluices, as the natural lay of the land requires for the necessary drainage thereof.</p>

<p>Jurisdiction—Nonresident—Service.</p> <p>No personal judgment can be rendered against a nonresident (a railway . company created and operating in another State) upon service on it by notice delivered beyond this State, under article 1230 of the Revised Statutes.</p>

<p>1.—Damages—Profits of Contract—Other Employment.</p> <p>The principle on which plaintiff, suing for a breach of contract for his personal services, must deduct, from the compensation he was prevented from earning, whatever he could have made during the time in other employment, does not apply to contracts for other than personal service, such as contracts for railway construction.</p> <p>Z.—Damages—Prima Facie Case.</p> <p>Where profits in another employment are to be deducted from plaintiff’s damages for breach of a contract for his employment, he makes a prima facie case, by showing the profits he would have made under the contract, and it is for defendant to show that by its breach he has been enabled to make other profits in other employment.</p> <p>3.—Contract—Damages—Pleading.</p> <p>Where defendant’s pleading to a suit for damages for not permitting plaintiff to perform his contract is a denial of the contract, and not a justification of plaintiff’s discharge under it, a charge justifying such action on the ground of plaintiff’s delay in performance was properly refused.</p>

<p>Appeal from the District Court of Kaufman County. Tried below before Hon. J. B. Dillard.</p>

Tried below before Hon. Tom C. Bradley. The mortgage admitted in evidence was signed Henry Bethan, but, in the body of the instrument, purported to be the act of Henry Bethel, and ivas so indexed by the clerk in registering it. There was evidence that the mortgagor was as well known by the name Bethel as Bethan.

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

<p>1. —Tax Suit and Sale—Service by Publication.</p> <p>In a suit for delinquent taxes the affidavit for service by publication upon a nonresident or unknown owner, required by article 5232o, Sayles’ Civil Statutes, is a condition precedent to the court’s power to inquire into the merits of the action. A citation by publication is not authorized without such affidavit and a judgment without citation is void.</p> <p>2. —Judgment—Collateral Attack—Rebuttable Presumption.</p> <p>While on a collateral attack the presumption will be indulged that an affidavit was filed to authorize the issuance of the citation by publication, still this presumption may be rebutted, unless by doing so the record is in some way contradicted; therefore where the record shows affirmatively an insufficient affidavit the said presumption is overcome.</p>

<p>1. —Verdict—Preponderance of Evidence.</p> <p>A mere preponderance of evidence against a verdict will not authorize an Appellate Court to set- it aside in the absence of anything in the record showing that it was the result of passion or prejudice.</p> <p>2. —Riding on Freight Train—Assumed Risk—Charge.</p> <p>In a suit by plaintiff for personal injuries received while riding on a freight train in charge of stock, charges considered, and held to sufficiently and correctly present the law as to the risk assumed by plaintiff.</p>

<p>Johnson Grass—Railroad Right of Way—Penalty—Constitutional.</p> <p>That part of the Act of April 18, 1901, fixing a penalty for railroad companies permitting Johnson grass to go to seed on their right of way is constitutional and can be enforced notwithstanding the clause providing for a recovery of damages in addition to such penalty is®uneonstitutional.</p>

<p>Appeal from the District Court of Leon County. Tried below before Hon. Gordon Boone.</p>

<p>Appeal from the District Court of Nacogdoches County. Tried below before Hon. James I. Perkins.</p>

A finding of fact may be supported by a combination of slight circumstances, no one of which taken alone would be sufficient. Evidence as to forgery considered and held sufficient. 7. —limitation—Water Barriers—Cases Distinguished.

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

<p>1. —Charge—Assuming Facts.</p> <p>A mere statement in the charge of the issues made by the pleadings can not be construed as assuming the existence of proof on those issues.</p> <p>2. —Measure of Damages—Difference in Market Price—Charge.</p> <p>An instruction, in a suit for damage by delay of a shipment of cattle, that the measure of plaintiff’s damage was the difference in the market price, if transported in the usual and ordinary time, and that realized on transportation in the time actually made, was not ground for reversal where the defendant asked and obtained an instruction relieving it from such liability if it used ordinary care and diligence in the transportation.</p> <p>3. —Evidence—Personal Knowledge—Presumption.</p> <p>A witness who testifies to the weights of cattle when sold at the stock yards is presumed, in the absence of evidence to the contrary, to speak from his personal knowledge.</p> <p>4. —Contributory Negligence—Feeding Cattle.</p> <p>Contributory negligence will not be attributed to a shipper of cattle in not keeping charge of and feeding his cattle before loading, where he placed them in the loading pens at the instance of the railway agent and on his assurance that the cars for loading them were expected soon, but such cars were delayed, and the cattle suffered damage while awaiting them.</p>

Tried below before Hon. Ed. R. Sinks. The fifth paragraph of the charge, referred to in the opinion, was as follows: If you believe that rule 104a ivas in force at the time of the plaintiff’s injury, and intended by the company to be observed by the plaintiff, and that by his failure to have the switch closed in obedience to the requirement of said rule, he was guilty of negligence, to find for the defendant.

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

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

<p>1.—Guarantor of Account—Rights and Liabilities.</p> <p>Plaintiffs addressed the following letter to one of the defendants: “We have an order amounting to $142.50 from O. S. Haggarty, of Beaumont, Texas, whom, we understand, you are backing. As Mr. Haggarty is a new man in the business, and seems to have no financial standing at present, will you kindly guarantee the payment of this bill? Kindly let us hear from you.” Upon reeeipt of said letter the addressee wrote upon the same the following: “O. K., George Adams, Sr.,” and returned it to the plaintiffs; thereupon the goods were shipped to H. Held, that by said endorsement Adams became originally and unconditionally responsible for the payment of the debt, and was not entitled to notice of default on the part of H., nor of acceptance on the guaranty, nor was any diligence necessary on the part of plaintiffs to fix his liability.</p> <p>2.—Payment—Proof.</p> <p>Payment is a defense which must be pleaded and proven by the defendant.</p>

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

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

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

<p>1. —Alighting from Train—Contributory—Negligence—Charge.</p> <p>The defendant having plead contributory negligence on the part of plaintiff in alighting from a moving train it was probably error for the court to charge that the suggestion of defendant’s employes, if any, for plaintiff to alight did not alone justify him in alighting, but was a circumstance to be considered with all the other evidence to determine whether he exercised proper care; but such error, if any, was cured by an instruction in the latter part of the charge wherein the jury are told that they would determine the question of plaintiff’s contributory negligence upon the whole evidence.</p> <p>2. —Same.</p> <p>Alighting from a moving train is not necessarily negligence per se.</p> <p>3. —Issues—Preponderance of Evidence—Charge.</p> <p>In a civil suit it is proper to instruct the jury to decide the issues submitted to them by a preponderance of the evidence.</p> <p>4. —Train Porter—Scope of Duty.</p> <p>It appearing from the testimony of the conductor that at certain stations, such as the one in question, it was the duty of - the train porter to help the passengers to alight, a direction by the porter to the plaintiff to alight at the time he did so, was within the scope of his duty.</p>

<p>Divorce—Voluntary Separation.</p> <p>A divorce was properly refused the husband on the ground of abandonment upon evidence showing that the wife. accused him of squandering upon lewd women all that she and her children could make (which the husband denied) and declared that she would see him dead and in hell before she would live with him another year; that thereupon the husband and wife by mutual consent divided the land constituting the homestead, the wife remaining in the dwelling and the husband moving into a tenant house upon the same place. Such separation having continued for more than three years, it appearing therefrom that the husband himself performed the physical act of leaving his wife and remaining away for the statutory period.</p>

<p>Appeal from the County Court of Ellis County. Tried below before. Hon. F. L. Hawkins.</p>

<p>1-.—Breach of Contract—Proximate Damages.</p> <p>B. sued S. for the price of brick furnished to construct a sewer. S. admitted the debt, but plead in reeonvention for damages occasioned by delay on the part of B. in furnishing the brick as they were needed for the work, and as B. had contracted to do; the damages claimed were $10 per day liquidated damages paid to the city for delay in completing the sewer; expenses of a watchman during the delay; expenses of extra labor; and expenses of reexcavation occasioned by the delay. B. knew that S. was under contract to complete the work within a certain time, and that this could not be done unless the brick were furnished promptly as needed. When the first delay in furnishing brick occurred, S. threatened to buy brick elsewhere, but was dissuaded by B.’s agent, who promised that the brick should be promptly furnished. Held, it could not be said as matter of law that said damages were too remote, and the court erred in excluding evidence of the same.</p> <p>%—Same—Repudiation.</p> <p>To justify a party to a contract in repudiating the same he must not he in default himself, and the breach of the other party must be without excuse. A party can not stand on and repudiate a contract at the same time.</p>

<p>Obstructing Public Bead—Injunction.</p> <p>The fact that the road overseer had authority to remove obstructions from a public road unlawfully fenced up by defendant did not prevent the county from maintaining its action against him for an injunction against the continuing of such nuisance, and the county had the right to institute and prosecute such action.</p>

<p>1. —Correction of Judgment.</p> <p>There can he no question as to the power of a trial court in this State to correct its judgment as to an error in the calculation of the amount thereof at any time prior to action by the Appellate Court upon the judgment.</p> <p>2. —Taxing Costs—Failure to Complain in Trial Court.</p> <p>It not appearing that anything was done in the trial cpurt by defendant to have certain costs taxed against the plaintiff, the matter will not be considered by the Appellate Court.</p>

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

<p>1.—Deed—Description of Land—Repugnancy.</p> <p>Every part of a deed must be given effect if possible, and the largest estate arising from its terms will be given to the grantee. But the intent of the parties, as in all contracts, when it can be arrived at from the deed, should prevail, unless contrary to law.</p> <p>3.—Same—Particular Description—General Description.</p> <p>Where a deed, after describing the land conveyed by metes and bounds, contained a reference to another deed for a further description, and a repugnance is found to exist between the field notes given and the description in the deed referred to, the field notes will control.</p>

<p>1.—Earnest Money—Suit to Recover.</p> <p>, In a suit to recover money advanced by plaintiff on a written contract to purchase land, and for damages for the failure of defendants to deliver possession of the premises contracted for, the principles applicable to specific performance of contracts may be looked to in determining the questions involved.</p> <p>2. —Contract for Purchase of Land—Specific Performance—Limitation Title.</p> <p>In an action for specific performance upon an ordinary contract for the purchase of realty, where the vendor’s title by limitation is so. clearly established as to make it a matter of law as distinguished from a question of fact, the contract will be enforced; but when the state of the evidence is such as to make the' question of title one of fact which must be submitted to the jury, as is ordinarily the case, specific performance of the contract will not be decreed.</p> <p>3. —Rejection of Title by Attorney Specified—Conclusive.</p> <p>Where a contract for the purchase of property is made subject to the approval or acceptance of the title by the purchaser’s attorney, if such attorney disapproves of the title or refuses to accept the same, the vendor can not enforce specific performance of the contract, in the absence of bad faith and unreasonableness on the part of the attorney.</p> <p>4. —Failure to Deliver Possession—Damages.</p> <p>Where the contract' provided that in the event the vendors failed to deliver possession of the premises in question within a certain time they should pay a stipulated sum as liquidated damages, and the vendee refused to accept the title tendered, he was not entitled to recover damages for failure to deliver possession of the premises.</p>

<p>1. —Negligence, When Question of Law.</p> <p>Negligence becomes a question of law only when the act causing injury to another is in violation of statute, or when the undisputed evidence admits only of the inference that the commission of the act in question was negligence.</p> <p>2. —Same.</p> <p>Where an act is done by one in obedience to an order of his foreman the law will not declare the act of obedience negligence per se unless the danger of obeying the order was so obvious and glaring from the servant’s standpoint at the time he undertook to obey it that no prudent man would have undertaken to obey it.</p> <p>3. —Intervening Negligence of Servant.</p> <p>When a servant is ordered by his vice-principal to take an engine from a siding onto the main track at a time when a train was due to pass said point, it is a question of fact for the jury whether or not the servant was guilty of negligence in failing to keep a lookout for the passing train, and whether or not such failure was the proximate cause of the injury.</p> <p>4. —Testimony Contradicted by Physical Facts.</p> <p>Where the positive testimony of witnesses on a question of negligence is contradicted by physical facts, an issue is thus raised which should be submitted to the jury.</p> <p>5. —Contributory Negligence—Pleading—Charge.</p> <p>When defendant pleads only certain acts of the plaintiff as constituting contributory negligence the charge of the court should be confined to the specific acts of negligence pleaded, and should not be so general as to include the submission of any other acts of negligence.</p> <p>6. —Damages—Charge Approved.</p> <p>See charge held to permit plaintiff to recover only fair compensation for the injuries received, and not subject to the objection that it permits plaintiff to recover double damages.</p>

<p>of Pacts—Stenographic Transcript—Law of 1905 Construed.</p> <p>When the caption of the transcript of the evidence identifies the case in which it was prepared by style and number, and by a statement of the cause tried, and date of trial, and gives the names of the attorneys for each party, it fully identifies the cause to which it relates.</p> <p>2.—Same.</p> <p>An agreement of parties to a statement of facts prepared by a stenographer while proper is not necessary under the law of 1905, and the certificate of the trial judge need not show that a disagreement existed before such statement was approved by him. It is sufficient if the official stenographer prepared the transcript of the evidence at the request of one of the parties.</p> <p>3.—Same—Documentary Evidence.</p> <p>The stenographer’s statement need only contain oral evidence, objections to same, rulings of the court, etc. Documentary evidence is not required to be copied into such statement, but may be sent up in the original form at the request of either party by written direction of the court, or transcribed by the clerk into the record.</p> <p>4.—Railroad—Overflow of Land—Rev. Stats., Art. 4436, Construed.</p> <p>The provisions of article 4436 of the Revised Statutes applies to water overflowing from an adjacent stream as well as to surface water.</p> <p>5.—Assignment of Error—Statement Thereunder.</p> <p>A reference to another part of the brief of appellant where almost the entire evidence is copied is not such a statement under an assignment of error as the rules governing appeals contemplate.</p> <p>6.—Evidence—Objection—Bill of Exception.</p> <p>Since 1853 the rule has never been varied that a bill of exception must disclose the objections made to testimony.</p> <p>7.—Pleading—New Cause of Action.</p> <p>Where the original petition set up damages to crops from an overflow caused by the faulty construction of defendant’s roadbed, and an amended petition was but an amplification of the original petition, a new cause of action is not set up.</p>

<p>1.—Note—Endorsement—How Questioned.</p> <p>The genuineness or sufficiency of an endorsement as a transfer of a promissory note can not be questioned under our statute except by sworn pleading.</p> <p>2.—Purchaser of Note after Maturity—Pleading.</p> <p>But where the owner of a note, or one who claims an equity therein alleges and seeks to prove that the holder acquired such note after maturity, and is therefore chargeable with notice of the rights or equities of a prior endorser, such pleading need not be sworn to.</p> <p>3.—Same—Terms of Endorsement.</p> <p>Past due commercial paper is degraded to the rank of a personal chattel, and the purchaser acquires only such title as the seller had. This rule does not apply, however, when the endorsement is in such language and terms as evidence ownership of the note in the person to whom it is transferred.</p>

<p>1. —Fact of Death—Proof—Letters of Administration.</p> <p>An order of the court probating a will and appointing an executor or administrator is prima facie evidence of the facts authorizing such order, including the death of the decedent.</p> <p>2. —Limitation.</p> <p>Facts discussed and held insufficient to show title by limitation under the ten years’ statute.</p>

<p>1, —Admission of Evidence—No Exception.</p> <p>Where it does not appear that a bill of exception was taken to the admission of evidence, an assignment of error based thereon will not be considered.</p> <p>2, —Assignment of Error—No Statement.</p> <p>An assignment of error that the court ,erred in its charge because contrary to the undisputed evidence, will not be considered when there is no statement of the evidence.</p> <p>3. —Same—Misquoting the Record.</p> <p>An assignment of error which misquotes the record will not be considered.</p> <p>4. —Charge—Emphasizing Issue.</p> <p>A charge that the burden was on the plaintiffs to establish by a preponderance of the evidence an issue alleged by them, did not unduly emphasize such issue.</p>

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

<p>1. —Pleading—Special Damage—Charge.</p> <p>Where the plaintiff sought by his pleading to recover only special damages caused by the negligence of the carrier in delaying the transportation of live stock whereby plaintiff was prevented from complying with a contract theretofore made by him, it was error for the court to submit to the jury an issue as to depreciation in the market value of the stock by reason of delay in the transportation.</p> <p>2. —Opinion Testimony, When Admissible.</p> <p>The question being whether or not the shipment of stock in question compared favorably with a previous shipment, it was not error to permit the plaintiff to tesify as to his opinion on the matter, since such fact is altogether a question of opinion evidence.</p> <p>3. —Cause of Injury—Pleading.</p> <p>A general allegation of rough handling would not admit proof of injury to stock caused by a defective car.</p> <p>4. —Contract of Shipment—Negligent Delay.</p> <p>Because a contract of shipment did not bind the carrier to deliver the shipment at any particular time, the plaintiff was not thereby prevented from proving, under proper pleading, that the carrier was guilty of negligent delay in transporting the shipment.</p>

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

<p>1. —Jurisdiction—Money Demand—County Court.</p> <p>A suit was brought in the District Court upon an unliquidated demand for $1,500; afterwards by amended petition the claim was reduced to $500. Held, the District Court had no jurisdiction to try the case after the amendment was filed.</p> <p>2. —Same—legislative Act—Restoring Jurisdiction.</p> <p>By an Act of the Legislature, which took effect July 14, 1905, the general jurisdiction of a County Court in civil and criminal matters was restored; in a suit for damages then pending in the District Court of the same county an amended petition was filed on August 7, 1905, reducing the claim for $1,500 to $500. Held, upon the filing of the amended petition the District Court should have transferred the case to the County Court.</p> <p>ON REHEARING.</p> <p>3. —Interest as Damages—Jurisdiction.</p> <p>In a suit for $500 damages and interest thereon, the interest being claimed as part of the damages to which plaintiff is entitled in addition to the amount named as damages, the District Court would have jurisdiction.</p> <p>4. —Boundaries—Fraud—Discovery—Limitation.</p> <p>The failure on the part of a vendee of land to have the same surveyed and thus determine whether or not the boundaries pointed out by his vendor are correct, is not necessarily negligence, and in the absence of negligence limitation will not begin to run until the fraud is actually discovered.</p> <p>5. —Same—Case Distinguished.</p> <p>In the case of Bass v. James, 83 Texas, 110, the trial court held as a matter of fact upon the evidence before it, that the purchaser of the land in that case, by the exercise of reasonable diligence, could have sooner discovered the falsity of the representations relied on. In the case at bar the question is as to the sufficiency of plaintiff’s pleading, and there is nothing on the face of the pleading which requires a holding that plaintiff was guilty of negligence in not having the land surveyed.</p>

<p>Railway—Fences—Stock Unlawfully at Large.</p> <p>The effect of the law with regard to fencing railways is superseded by the adoption of the law prohibiting stock from running at large; and- one who turns his stock into his field, where such stock law is in force, knowing that no sufficient fence prevents access of stock therefrom to the railway track can recover for the killing it by a train only on proof of negligence.</p>

<p>1. —Evidence—Executory Sale—Vendor’s lien.</p> <p>To show plaintiff’s right to recover as administrator the land sued for in trespass to try title, defendant having plead limitation to the debt, which was secured by vendor’s lien reserved by plaintiff’s intestate on sale to defendant, it was competent to introduce a note executed by defendant to plaintiff, the administrator, in connection with evidence that it was given in part for the balance due on the original debt for the land.</p> <p>2. —Vendor’s lien—Partial Release.</p> <p>Where the vendor released the lien for purchase money on various portions of the land, sold by vendee to third parties, he could, on refusal of the vendee to pay the balance of the purchase money, recover, in trespass to try title, the part of the land still held by the vendee.</p> <p>3. —Same—Pleading.</p> <p>The plaintiff, seeking to recover back land from the vendee on account of refusal to pay the purchase money, and where he has released the lien on portions sold off by the vendee, should, it seems, describe the land remaining in the vendee’s hands and sought to be recovered, and not sue for an undivided interest in the entire tract originally sold.</p> <p>4. —Charge—Assuming Facts.</p> <p>A requested charge must not assume facts which are to be determined by the jury.</p> <p>5. —Trial Amendment—Taxing with Costs.</p> <p>It is within the discretion of the court to tax a party with costs as a condition of permitting a trial amendment to let in evidence excluded under previous pleading.</p>

<p>- Public Weigher—Penalty.</p> <p>In an action by a public weigher to recover the statutory penalty on account of others weighing cotton in his territory (Acts of 1889, ch. 155, p. 264) the petition must allege that the defendants were factors, commission merchants, or persons similarly situated, in order to bring the case within the statute.</p>

<p>Contract—Damages.</p> <p>One who pays money to another in consideration of the latter’s agreement to furnish him with State and county license as a retail liquor dealer may recover back the money paid on failure to comply with such agreement, though lie has pursued the occupation without license and without being disturbed by the county officers.</p>

<p>Statement of Facts—Stenographer’s Report.</p> <p>A separate document, sent up with the transcript, endorsed “statement of facts,” purporting to contain all the facts proven on the trial, and approved and signed by the judge, but not showing otherwise that it is the official stenographer’s transcript of the evidence, nor that it was submitted to the interested parties for their objections, nor that the documentary evidence it contained was embraced therein by direction of the court does not comply with the law (Acts 29th Leg., Regular Session, p. 219) and can not be considered as a statement of facts.</p>

Tried below before Hon. B. H. Gardner. On appeal from Justice Court, Avhere plaintiff prevailed, the district judge directed a verdict for defendant, and plaintiff appealed.

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

<p>Appeal from the District Court of Leon County. Tried below before Hon. Gordon Boone.</p>

<p>Destruction of Crop of Fruit—Measure of Damage.</p> <p>In an action by a tenant to recover damages for the destruction of a crop of fruit by a fire caused by the negligence of a railway company in the month of January, the measure of damages is the difference between the value of the crop immediately before and immediately after the injury. Although the fruit may not have made its appearance at the time of the fire, it was in some stage of development which was arrested, and the crop thereby destroyed. The same rule applies as in cases of other annual crops.</p>

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

<p>Appeal from the District Court of Nacogdoches County. Tried below before Hon. James I. Perkins.</p>

<p>Appeal from the Count}' Court of Jefferson County. Tried below be-' fore Hon. D. P. Wheat.</p>

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

<p>Appeal from the District Court of Harris County. Tried below before Hon. K"orman G. Kittrell.</p>

<p>1. —Boundary—Conflicting Testimony—Peremptory Charge.</p> <p>Where witnesses differed in their testimony as to the location of a boundary line it was error for the court to instruct a verdict for the plaintiff for the land described in his petition.</p> <p>2. —Trespass to Try Title—Joint Owners.</p> <p>In trespass to try title, one or more of several joint owners may recover the entire tract against a stranger to the title.</p> <p>ON REHEARING.</p> <p>3. —Adverse Possession—Definition—Charge.</p> <p>Our statute sufficiently defines the character of the adverse possession necessary to support the ten years statute of limitation, and it was error, under the facts of this case, for the court in its charge to undertake to amplify the terms which the Legislature has carefully defined.</p> <p>4. —Adverse Possession—Claim of Bight—Charge.</p> <p>It was error for the court, under the testimony in this case, to charge the jury in effect that if the defendant, at the time he went into possession of the land in controversy, had no intention of claiming the same by limitation, and that he had no such intention until a later date—less than ten years before suit filed— and that prior to said date, although holding the land, he was not doing so in repudiation of the right of the owner, then there would be no adverse possession within the meaning of the law; because, if the defendant claimed the land in controversy for the statutory period adversely, within the meaning of the statute, it was entirely immaterial that he made no claim thereto by “limitation,” “at the time he went into possession,” or at any other time.</p>

<p>1.—Deed—Delivery—Evidence.</p> <p>A creditor of the owner of a tract of land wrote to him offering a certain price for the land, and saying that if lie did not wish to take the price offered, then to give him some showing for what he owed, and referred him to the creditor’s attorney to “fix it up some way.” The debtor went to the attorney named, presented the letter, and stated that he desired to convey the land to the creditor. A deed was prepared, signed and acknowledged by the debtor, and delivered by him to the attorney for the creditor. Held, a complete delivery, though the creditor was not notified of the matter until long after.</p> <p>ON BEHEABING.</p> <p>52.—Practice on Appeal—Undisposed of Issue.</p> <p>Where an issue is raised by the pleadings and evidence in the trial court, but not disposed of by the judge, the Appellate Court, upon reversing the judgment of said court, should remand the cause in order that said issue might be disposed of.</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 Bowie County. Tried below before Hon. P. A. Turner.</p>

<p>Appeal from the County Court of Bowie. County. Tried below before Hon. Sam. H. Smelser.</p>

<p>Appeal from the District Court of Leon County. Tried below before Hon. Gordon Boone.</p>

<p>1. —Deed—Grantee in esse.</p> <p>A number of persons intending to incorporate met, organized by electing officers and selected a corporate name; a deed was executed to them, the grantee being designated by the intended corporate name. Held, the deed was valid in equity, at least, and did not fail for want of a grantee, although the incorporation was never effected.</p> <p>2. —Contract to Provide Title.</p> <p>A contract to “provide” a perfect title means only that the deed shall convey a good and perfect title. It does not include the furnishing, of an abstract showing perfect title.</p> <p>3. —Payment of Money—Evidence.</p> <p>Without producing the books of the bank the cashier may testify to the fact that a certain item of money was placed to the credit of a certain party on the books of the bank.</p> <p>4. —Evidence Without Pleading.</p> <p>Facts proven but not alleged can not form the basis of a recovery.</p>

<p>1.—Conclusions of Fact and Law—Voluntary Filing by Judge.</p> <p>Conclusions of fact and law voluntarily filed by a trial judge can not be given the force and effect of conclusions filed upon request of either party as provided by. the statute, and may be ignored by the party appealing. Rev. Stats., art. 1333.</p> <p>3.—Suit to Cancel Deed—Evidence Held Sufficient—Time—Essence of Contract.</p> <p>Plaintiff conveyed to the city of H. a strip of land upon the sole consideration of the undertaking and agreement on the part of the city to convert the same into a street and to build or assist in building a bridge across an adjacent bayou, all of which was to be done within a certain time specified. Evidence considered, and held to show that time was ,of the essence of the contract, and sufficient to sustain the judgment of the court cancelling the deed.</p>

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

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

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

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

<p>Appeal from the County Court of Terry County. Tried below before Hon. W. H. Copeland.</p>

<p>1. —Contract on Sunday—Market Value of Goods—Charge.</p> <p>The suit being upon an account for goods sold and delivered at a stipulated price and the defenses being that the goods were of an inferior grade, and the contract for their purchase was made on Sunday, the court did not err in charging the jury to find for the plaintiff the ■ market value of the goods in question, although the suit was for an agreed price, because the petition alleged that the market value and the agreed price were identical, and the defensive pleading and evidence raised the issue of market value. The defendant was liable for the market value of the goods irrespective of the validity of the contract.</p> <p>2. —Charge—Assumption of Fact—Harmless.</p> <p>A charge which assumes the fact that the goods sued for had a market value is harmless when it is certain that said goods had at least some value in the market.</p>

<p>1. —Discovered Peril—Conflicting Evidence—Verdict.</p> <p>Where the vital issue in a case is discovered peril, and the testimony is conflicting, that for the plaintiff being sufficient to support the verdict, the court did not err in refusing to instruct a verdict for the defendant, nor in refusing to set the verdict aside.</p> <p>2. —Same—Charge.</p> <p>Charge on discovered peril considered, and held a fair presentation of the law on that subject.</p> <p>3. —Stopping Trains—Distance—Testimony.</p> <p>Where witnesses simply testified as to instances in which they had seen similar trains stop at the same place and the distance within which they were stopped, their testimony was not subject to the objection that they were not qualified to testify as to such matters because they had had no experience in operating trains.</p>

<p>Railway—Taxation—Assessing Unrendered Property.</p> <p>The requirement to give the abstract number and number of certificate in rendering lands for taxation (Rev. Stats., arts. 5118, 5119) does not apply to the track of a railway company (Rev. Stats., arts. 5073, 5082), which is required to render its road as an entirety; and the assessor, in placing on the rolls as unrendered a part of the mileage omitted, need not describe it more fully than by giving the length of road omitted as a whole; and foreclosure for the back taxes on the unrendered portion could be had on such undivided part of the line through the county.</p>

<p>1. —Land Agent—Commissions—Occupation Tax.</p> <p>The failure of a land agent to pay his occupation tax will not defeat his action to recover commissions for making a sale; the law prohibiting pursuit of the occupation without such payment is a revenue law, and not a regulation of the business on grounds of public policy.</p> <p>2. —Land Agent—Commission—Procuring Purchaser.</p> <p>An agent who has procured a purchaser for land whom the owner accepted and contracted with, will not be defeated of his right to commissions by the fact that the purchaser proved unable to carry out such contract.</p> <p>3. —Same—Subcontract.</p> <p>Where the owner of land committed the sale solely to an agency selected by him, another, who found a purchaser in pursuance of an agreement with such agency for a division of the commissions, and took no other part in closing the transaction, was not entitled to recover any commission from the owner.</p> <p>4. —Charge—Ignoring Issue.</p> <p>A requested charge which ignores an issue supported by evidence and on which a different verdict from that which it calls for might be rendered, should be refused.</p> <p>5. —Contract—Acceptance of Benefit.</p> <p>One who accepts and takes the benefit of services performed by another under employment by an agent not authorized to employ, can not avail himself of his agent’s lack of authority.</p> <p>6. —Evidence—What Would Have Been Done.</p> <p>Testimony as to what would have been done by a party in hypothetical circumstances, was immaterial where the sole issue concerned what was actually done.</p>

<p>Estates of Decedents—Administration Closed—Suit by Heirs.</p> <p>The administration of an estate having been closed, leaving debts unpaid, the heirs could maintain suit to recover a tract of land turned over by the administrator, as being included in the sale, to a purchaser of property from him, but which was in fact never included in the property inventoried nor embraced in the sale.</p>

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

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

<p>Error from the County Court of Hill County. Tried below before Hon.- H. J. Smith.</p>

<p>1. —Charge—Assuming Unquestioned Facts.</p> <p>Instructions should not treat as doubtful facts which are unquestioned, but may assume that they exist.</p> <p>2. —Damages—Personal Injury.</p> <p>Evidence considered and held to sustain a recovery of $5,000 for personal injury to a traveler on the highway, through his horse getting entangled in a wire negligently permitted to fall down by a telephone company.</p>

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

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

<p>1. —Sale by Sample—Implied Warranty—Bight of Inspection.</p> <p>In a sale by sample there is an implied warranty by the seller that the goods will be of the same quality as the sample, and the buyer has the right to inspect the goods upon their arrival notwithstanding the order provided for delivery f. o. b. cars at seller’s factory.</p> <p>2. —Contract—Entirety—Bight of Bejection.</p> <p>Where some of the goods tendered the buyer were not according to sample, and all the goods, those according to sample and those not according to sample, were packed together, the buyer could not be required to separate the good from the bad and accept the good, but had the right to reject the entire shipment.</p> <p>3. —Pleading—Contract—Countermand—Burden of Proof.</p> <p>The defendant plead that the order for the goods had been countermanded; the court found as a conclusion of fact that the order was not subject to countermand, but also found that some of the goods were not according to contract and that all the goods were packed together. Held, the burden of proof was upon the plaintiff to show a compliance on its part with the contract; failing in this, it was not entitled to recover on the contract, although the defendant assigned a different reason for refusing to pay for the goods.</p>

<p>Appeal from the District Court of Lubbock County. Tried below before Hon. L. S. Kinder.</p>

<p>Appeal from the County Court of Dallas County. Tried below before Hon. Hiram T. Liveley.</p>

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

<p>Trial of the Right of Property—Judgment—Value of Use of Property.</p> <p>In a trial of the right of property when the judgment -is against the claimant and provides- for the return by him of the property in controversy and for payment of the reasonable value of the use of the property wliile_ in his possession, the judgment should fix the amount of such use, rent or hire.</p>

<p>Personal Injury—Improper Tools—Negligence of Master—Peremptory Charge.</p> <p>In a suit for personal injuries where there was evidence tending to show • that the tool by which plaintiff was injured was not a safe tool or apparatus to use for the purpose for which it was provided by the master, that it was insecure and dangerous for that purpose, that complaint of these facts had been made to the representative of the master without effect, that the accident was caused by the improper construction of the tool and that the accident would not have occurred if a proper tool had been used, it was reversible error for the court to instruct a verdict for the defendant, although the evidence for the defendant strongly controverted the foregoing facts.</p>

<p>Appeal from the District Court of -Henderson County. Tried below before Hon. B. H. Gardner.</p>

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

<p>Streets and Alleys—Dedication.</p> <p>When an owner of land lays out and establishes an addition to a city and makes, exhibits and files in the county clerk’s office a plat of said land, including in the plat streets and alleys, and sells the lots with clear reference to that plat, the purchasers of the lots acquire, as appurtenant to their lots, every easement, privilege and advantage which the plat represents as belonging to them, as part of the town, and title vests in the city in order that it may keep said streets .in such a condition as that the traveling public may with safety pass over and along said streets.</p>

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

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

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

<p>1. —Shipment of Cattle—Contract—Agent—Authority.</p> <p>In a suit for damages for delay in transporting cattle to market upon a “feed in transit” contract, plaintiff was allowed to testify that in making the shipment from the station at which said cattle were fed, the same being a station upon an intermediate road and not on appellant’s line of road, he made a contract with the agent at said station that plaintiff’s cattle were to be transported through to destination without being unloaded and were to reach their destination in time for the market of a certain day, and that no other freight was to be picked up on the road by said train of cattle. Appellant objected to said testimony, because it was not shown that said agent had "any authority to make such an agreement on behalf of appellant; because the same was beyond the scope of his authority; because it was not shown that said agent was the agent of appellant or had any authority to act for it, and because the evidence showed that said cattle could not be transported that distance in 28 hours and said contract was therefore illegal and void. Held, in view of the evidence in the case, the objections should have been sustained. Gulf, C. & S. F. Ry. Co. v. Jackson, 14 Texas Ct. Rep., 100, followed.</p> <p>2. —Statement by Brakeman—Hot Evidence.</p> <p>The brakemen "of a railroad company have no authority to tell a shipper that his cattle would not be transported on another line of road until a certain time and bind their own company by such statement.</p> <p>3. —Through Contract of Shipment—liability.</p> <p>When the contract of shipment comprehends the entire distance from the initial point to destination a carrier bound by the contract can not relieve itself of the negligence of. an intermediate carrier.</p>

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

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

<p>Appeal in Forma Pauperis—Art. 1401, Rev. Stats., Construed.</p> <p>Where in an appeal in forma pauperis the affidavit of inability to pay or secure the costs is made before a notary public of the county of the trial, and there is nothing in the affidavit or the record to show that proper proof of appellant’s inability to pay the costs or any part of the same was made before the county judge of the county where appellant resides, or before the court trying the cause, the appeal will be dismissed. The statute concerning the amendment of appeal and writ of error bonds has no application to such case.</p>

<p>Appeal from the County Court of Callahan County. Tried below before Hon. I. N. Jackson.</p>

<p>1. —False Imprisonment—Sheriff—Liability of Sureties.</p> <p>The liability of sureties on a sheriff’s official bond is limited to his official acts, as distinguished from those in which his official character forms the pretense or color, not the authority. Hence the sureties on a sheriff’s official bond are not liable for the arrest and imprisonment of a person by their principal without lawful authority.</p> <p>2. —Same—Warrant of Arrest.</p> <p>By the provisions of our Code of Criminal Procedure, article 238, a warrant of arrest issued by a magistrate other than a judge of the Supreme Court, Court of Appeals, District or County Court, can not be executed in any other county than the one in which it issues, unless endorsed by one of said judges or by some magistrate of the county in which the accused is found. Hence an arrest in H. county, by virtue of a warrant of arrest issued by a justice of the peace in and for L. county, and not endorsed as above required, was unlawful, and an extra-official act of the officer making the arrest, for which his sureties would not be liable, but for which the officer himself would be.</p> <p>3. —Same—Venue.</p> <p>It appearing, from the allegations of plaintiff’s petition, that the defendants, a constable of L. county and the sheriff of H. county, acted together in his unlawful arrest and imprisonment, an action for damages could be maintained against both of them in L. county.</p> <p>4. —Unlawful Arrest—Continued Act.</p> <p>An arrest by virtue of a void warrant is not excused, nor the detention of the prisoner made lawful, by taking him into the territory in which the warrant is effective.</p>

<p>1. —Deposition—Caption—Certificate—Identifying Case.</p> <p>When depositions are attached to interrogatories filed' in a case, and were taken in obedience to a commission issued out of the court in which the case is pending, and the caption to the interrogatories gives the correct style and number of the case, and the interrogatories and commission both show the court in which said case was pending, and the certificate shows that the deposition was taken in answer to said interrogatories, the case in which the deposition was taken is sufficiently identified.</p> <p>2. —Same.</p> <p>The certificate of an officer taking depositions should show that the answers of the witness were signed and sworn to by the witness before the officer who took the deposition.</p> <p>3. —Reconvention—Burden of Proof.</p> <p>When the defendant in an attachment suit reconvenes for damages, the burden is upon him to show that the attachment was wrongfully sued out.</p> <p>4. —Pleading Evidence.</p> <p>The allegations of defendant in his -answer, as to his experience as a rice farmer and his knowledge of the cost of making a crop of rice, were, in effect, a pleading of evidence, and should have been stricken out on exception.</p> <p>5. —Damage to Crop—Measure.</p> <p>The measure of damage to a crop of rice by failure to furnish water to irrigate the same would be the difference between the value of the crop actually raised, less the cost of raising, harvesting and marketing the same, and the value of the crop which would have been raised if properly irrigated, less the cost of raising, harvesting and marketing the same.</p> <p>6. —loss of Attached Property—liability.</p> <p>The plaintiff in attachment would not be liable for the value of a horse, seized by virtue of the attachment, which died while in the possession of the sheriff, unless the attachment was wrongfully sued out, and this though the negligence of the sheriff caused the death of the horse.</p> <p>7. —Damage to Crop—Allegation—Proof.</p> <p>Allegations by defendant that plaintiffs wrongfully took possession of the crop, and by carelessness damaged the same, will not authorize a recovery upon evidence that plaintiffs took possession of the crop by and with the consent of the defendant for the purpose of gathering it, but damaged the same by negligent methods.</p>

<p>1. —Person Walking on Eailroad Track—Duty of Engineer.</p> <p>An engineer is not required to use any means to stop his train as soon as he discovers a man on the track; he has a right to presume that the man will leave the track in time to avoid injury. It is only after the engineer has good reason to believe that the man is unconscious of his peril, or unable to avoid the danger, that he is required to use all the means in his power to stop the train.</p> <p>2. —Same—Negligence—Evidence.</p> <p>Evidence considered, and held sufficient to support a finding that an engineer was negligent in failing to use the means at his command to avoid injuring one upon the railroad track.</p> <p>3. —Evidence of Experiments.</p> <p>Evidence of experiments made by plaintiffs for the purpose of showing at what point on the track the engineer could have seen the deceased considered, and held admissible. Evidence of this character is admissible when the experiments are made under circumstances substantially similar, in all material particulars, to those obtaining at the time of the occurrence with regard to which the evidence is offered.</p>

Error from the District Court of Cass County. Tried below before Hon. P. A. Turner. The value of the goods and the damages were laid at $845. The original petition did not allege negligence, but failure of defendant, a common carrier, to comply with its contract to transport and deliver. Defendant plead that the goods were destroyed by fire without negligence on its part, and plaintiff, by supplemental petition alleged that such destruction was due to defendants negligence.

<p>Written Contract—Varying by Parol.</p> <p>Defendants who had agreed in writing to pay money on condition of the building of a railroad to their town and the location of its depot within certain specified limits could not defeat recovery thereon by showing that they signed it relying on representations that the depot would be located on a particular lot within those limits, which was not done.</p>

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

<p>1. —Manner of Stopping Train—Question of Fact—Negligence.</p> <p>Plaintiff alleged that, while in the performance of his duties as a brakeman upon one of defendant’s freight trains, the train was stopped by the engineer in such a sudden and unusual manner as to cause him to be thrown to the ground and injured. Evidence considered, and held not only sufficient to require the submission to the jury of the issue of negligence in the respect alleged, but also sufficient to support the verdict of the jury finding the defendant guilty of negligence.</p> <p>2. —Servant—Safe Place to Work—Duty of Master.</p> <p>It is the duty of a master to exercise ordinary care in providing a reasonably safe place for the servant to work. This duty is nondelegable, and the servant has the right to assume that it has been performed. Pacts considered, and held to support the finding of the jury that the defendant company was guilty of negligence in leaving a string of cars uncoupled on a siding, plaintiff’s duty requiring him to walk along the top of said cars.</p> <p>3. —Master’s Negligence—No Assumed Risk.</p> <p>A servant never assumes the risk of a danger arising from his master’s negligence unless he knows of the act of negligence, or, in the discharge of his duties, it was so open to observation that he will be charged with notice, and is cognizant of the danger incident thereto.</p> <p>4. —Same—Contributory Negligence.</p> <p>A servant has the right to assume that the master has performed his duty, and to act upon such assumption, and is not guilty of contributory negligence in so doing.</p> <p>5. —Written Rule—Not Necessary for Court to Construe, When.</p> <p>When a rule of the defendant company for the guidance of its employes is in writing, and is free from ambiguity and not open to construction, and when the applicability or inapplicability of said rule to the siding in question, was a question of fact to be determined by the jury, it was not necessary for the trial court to construe such rule in its charge to the jury.</p> <p>6. —Known Negligence of Master—Duty of Servant.</p> <p>The court charged the jury as follows: “If cars were usually or customarily left coupled together, but if they were sometimes or occasionally left uncoupled, then if that fact was known to plaintiff, or if it was obvious to plaintiff while engaged in his work as brakeman, then it became his duty to use ordinary care to ascertain if the cars were uncoupled on the occasion in question, and if he failed to use ordinary care to ascertain whether or not the cars were coupled, then, if he was injured as the proximate result of the cars being uncoupled, he can not recover.” Held, when taken in connection with entire charge, not susceptible of the construction that, if the cars were usually or customarily left coupled together, then, as matter of law, no duty rested upon plaintiff to ascertain whether the cars were coupled on the occasion of the injury. But, query, even if so construed, would it not be proper 1</p> <p>7. —Same.</p> <p>In order to Relieve the master from liability for failure to perform a duty the knowledge of the servant must be of the failure to perform the particular duty in question, and not only of his failure to discharge a similar duty on prior occasions.</p> <p>8. —Concurring Negligence of Master and Servant—Liability to Third Party.</p> <p>A railroad company is not relieved from liability for a negligent act of its engineer in operating a train because such engineer knew, or might have known by the exercise of ordinary care, that the company itself has been guilty of another act of negligenqe which concurred with his own in causing an injury to another servant.</p> <p>9.—Usual Manner of Operating Train—Assumed Risk.</p> <p>The court charged the jury that, if they believed from the evidence that the engineer of the train on the occasion in question stopped the train in the usual and customary manner of stopping trains on defendant’s road, under similar circumstances, then the plaintiff assumed the risk from the manner in which the cars were stopped, and was not entitled to recover, even though they believed that, had it not been for the manner in which the cars were stopped, plaintiff would not have been injured. Held, the charge was correct.</p>

<p>Appeal from the District Court of Trinity County. Tried below before Hon. Gordon Boone.</p>

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