Volume 44 — Texas Civil Appeals Reports

<p>1. —Contract—Ratification.</p> <p>Evidence considered, and held to sustain a finding by the trial court that a contract made by a traveling salesman with a customer was ratified by the principals.</p> <p>2. —Pleading—Evidence—Excessive Judgment.</p> <p>The total amount claimed by a plea in reconvention was $200; of this amount $95 was alleged to be profits lost by defendant by the failure of plaintiff to ship certain goods contracted for; and the balance was claimed as commissions due by plaintiff to defendant. There was no evidence as to the loss of profits. A finding by the court of $113 in favor of defendant on said plea in reconvention was therefore excessive and beyond the amount claimed in the pleading.</p>

<p>1. —Account Books—Correctness—Proof.</p> <p>Any one who has personal knowledge of the fact may testify as to whether or not books of account are correct; such testimony is not hearsay. It often happens that the bookkeeper has less knowledge of the transactions he records than the clerk or salesman with whom the transaction occurred, and the testimony of such a person that the account is correct is competent.</p> <p>2. —Same.</p> <p>In a suit upon an account the secretary and general manager of the plaintiff testified that he made out the account sued on from the books of the company, which books were correctly kept, whereupon he was asked, “Can you state whether or not this account is correct?” to which question the defendant objected “that the witness had testified that he did not keep the books, and his testimony would be hearsay,” which objection was sustained. The witness would have answered that the account was correct because he knew the books were correct, and that it was a correct, copy from the books. Held, the exclusion of the testimony was error, considering only the objection made.</p>

<p>Appeal from the County Court of Hunt County.</p>

<p>1. —Loss of Baggage—Special or Personal Value—Measure of Damage.</p> <p>In a suit for the value of hand-painted chinaware shipped as baggage and damaged in transportation, it appearing from the evidence that said chinaware had no market value, and that it could not be replaced or repaired, the measure of damage is the actual loss in money sustained by the owner by reason of his being deprived of the value of the’ same, and not any fanciful price, because of sentiment or association. The loss of the property to the owner, and not its reasonable value, is the proper measure of damage.</p> <p>2. —Baggage—Notice of Contents—Question of Fact.</p> <p>A box containing chinaware was marked “glass” and checked as personal baggage; whether or not appellant’s agent saw the word “glass” on the box, and whether or not this word and the character of the box were sufficient to put an ordinarily prudent person upon notice of the character of the contents and that the box was not baggage proper were questions of fact for the jury, and a peremptory instruction for the defendant was, properly refused. If the defendant accepted the box charged with notice that it was not baggage, it would be liable.</p> <p>3. —Final Carrier—Presumption Against—Gulf, C. & S. F. Ry. v. Edloff, 89 Texas, 458, Distinguished.</p> <p>A box containing chinaware was checked as personal baggage from a station in Kentucky to Ft. Worth, Texas; it was to be transported over three lines of railroad; appellant was the second or intermediate road; the box was in good condition when delivered to the initial carrier, and when received by the final carrier was in “general bad order,” judging from external appearances. Held, that the presumption that the damage occurred on the line of the final carrier would not obtain. The case of Ry. v. Edloff, 89 Texas, 458, is not analogous; in that case, the carrier had the opportunity to inspect the goods and ascertain the extent of the damage, and neglected to do so-; in this case the final carrier could not inspect and determine the extent to which the china was damaged when received by it.</p>

<p>Deed—Construction—Rule in Shelley’s Case.</p> <p>A deed contained the following language “. ... I do by these presents grant, give and set over in fee simple and forever unto Susan D. Berry a certain tract of land .... To have and to hold said land unto the said Susan D. Berry and the heirs of her body begotten by my said son, K. B. Berry, without the power, nevertheless, on her part or on the part of herself and her husband jointly or severally to alienate or otherwise dispose of said land or any part thereof until the youngest child begotten now or hereafter of her by my said son, IC. B. Berry, shall have arrived at the age' of twenty-one years if a son, or until the same shall have married, if a daughter. Together with all and singular the rights, titles, interests and appurtenances belonging or anywise appertaining. To have and to hold to cultivate and use said land as her said property according to the stipulation hereinbefore made,” with covenant of general warranty. Held, the restraint upon alienation was valid and binding, and the deed did not come within the rule in Shelley’s case.</p>

<p>Appeal from the District Court of Hardin. County.</p>

<p>Appeal from the District Court of Johnson County.</p>

<p>Appeal from tbe District Court of Lamar County.</p>

<p>1. —Carrier—Limiting Liability—Notice—Reasonableness.</p> <p>A contract for shipment of live stock within the State which requires the shipper, as a condition of his right to recover, to give written notice to an agent of the carrier of his claim for damages within a time limited, is not unreasonable nor invalid where the limitation of time for giving notice is not less than ninety days (Bey. Stats., art. 3379) and the agent to whom it may be given is known to or easily ascertainable by the shipper.</p> <p>2. —Same—Notice to Connecting Line.</p> <p>Upon a shipment over connecting lines of railway the defendant, receiving it from the initial carrier and executing a new written contract for transportatian over its own line, limiting its liability to damages occurring thereon, and providing for notice to it of any claim therefor, has not thereby adopted or recognized the contract of the initial carrier .(Bey. Stats., 331a, 331b), and notice of the claim given to such initial carrier is not a compliance with the contract for notice to such defendant.</p> <p>3. —Carriage of Live Stock—Bedding Cars.</p> <p>A railway company which beds the cars for transportation of live stock must do so with due care, whether bound by its contract to furnish such bedding or not.</p> <p>4. —Charge—Evidence.</p> <p>It was error to submit delay in transportation by a carrier as a ground for recovery against it where the contract limited il, liability to damages caused on its own line and there was no evidence of delay thereon.</p>

A finding of fact as to what issues were determined by a former judgment will not be reviewed in the absence of an assignment of error in such finding. 2. —Same—Question of Fact—Burden of Proof.

<p>Appeal from the County Court of Austin County.</p>

<p>Appeal from the County Court of Liberty County.</p> <p>Tried belorv before Hon. T. C. Crane.</p>

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

<p>1. —Removal of County Judge—Petition.</p> <p>A petition for the removal of a county judge under article 3543 of the Revised Statutes, which alleged, in substance, that defendant was a member of an organization known as the Anti-Tax Party, whose object and purpose was to delay and defeat the collection of State and county taxes upon school lands, and that said judge conspired with other county officials and used his personal, political and official influence to accomplish the purposes of said organization, considered, and held sufficient under the provisions of said statute.</p> <p>2. —Same—Conspiracy—Evidence.</p> <p>In proof of a conspiracy acts of omission and commission of the defendant, and of his co-conspirators during the existence of the conspiracy, both before and after the date alleged in the petition, are admissible in evidence. Evidence considered, and held admissible.</p>

<p>Personal Injuries—Negligence—No Evidence—Charge.</p> <p>■ It is reversible error to submit an issue not raised by the evidence. In a suit for personal injuries received in an attempt to rescue a passenger in danger, evidence considered, and held not to warrant a charge submitting an issue of negligence on the part of the train operatives in failing to discover the danger of the passenger in time to avoid the collision.</p>

<p>Appeal from the District Court of Comanche County.</p> <p>Tried below before Hon. TST. R. Lindsley.</p>

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

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

<p>Appeal from the District Court of Brazos County.</p>

<p>Statement of Facts—Filing—Diligence.</p> <p>A judgment will be reversed for failure of the trial judge to have the statement of facts filed, where, the parties having failed to agree, appellant, in due time, presented his own statement to the judge, who declined to sign it and approved one presented by appellee. Appellant was' not in default, it being the duty of the judge to prepare the statement and file it (Rev. Stats., art. 1380), and appellant had a right to presume that he would do so.</p>

<p>1. —Pleading—Telegram—Contract.</p> <p>An allegation that plaintiff’s agent delivered to defendant, a telegraph company, a message for transmission, and paid the customary charge therefor, is sufficient to show a contract by defendant to transmit and deliver it, without pleading the legal conclusion that defendant undertook so to do.</p> <p>2. —Pleading—Wife’s Separate Property.</p> <p>An allegation that plaintiff, who sued as a married woman joined by her husband, was a feme sole at the time of the negligent delay by defendant in the transmission and delivery of a telegram to her, for which she sought damages, was sufficient to show that she sued for same as her separate property, and not community.</p> <p>3. —Pleading—Demurrer—Evidence.</p> <p>An exception to the overruling of a special demurrer can not be aided by evidence introduced on the trial.</p> <p>4. —Pleading—Evidence.</p> <p>An allegation that plaintiff, had the telegram to her been delivered in proper time, could and would have attended the funeral of a brother, was sufficient, without pleading the evidence by which such fact was to be established.</p> <p>5. —Telegraph Company—Office Honrs.</p> <p>The omission, from a paragraph of the general charge, of reference to the effect of the regulations of a telegraph company as to office hours, in qualifying its duty as to prompt transmission and delivery of a dispatch, was not prejudicial where, in another paragraph, the effect of such regulations on defendant’s liability was properly stated.</p> <p>6. —Proximate Cause—Delay of Euneral.</p> <p>The refusal of those in charge of a funeral to delay same for another day to permit plaintiff to attend did not destroy her right to recover from a telegraph company for its negligence in delivery of a message which might have enabled her to be present on the day fixed.</p> <p>7. —Telegraph Company—Office Hours—Rush Message—Pleading.</p> <p>Where the defendant telegraph company pleaded and proved its regulations as to office hours in excuse for delay in transmitting a message, and plaintiff in rebuttal proved, without objection, an agreement, on receiving the message, to “rush” same, it was immaterial that plaintiff had not declared on such special undertaking.</p> <p>8. —Charge.</p> <p>Requested instructions, substantially embraced in the charge given, or without evidence to support them, were properly refused.</p> <p>9. —Damages—Plaintiff’s Duty to Avoid.</p> <p>Plaintiff was not precluded from recovering damages for inability to attend the funeral of a relative through failure of the telegraph company to transmit in due time a message announcing the death by the fact that she had received and had not acted on a previous message announcing his illness.</p> <p>10. —Bills of Exception.</p> <p>Objections to the admission of evidence can not be considered oil appeal where the bills of exception were not presented and signed within ten days from the trial.</p>

<p>1.—Suit Against Estate—Credits and Off-sets—Pleading.</p> <p>In a suit against an estate on promissory notes it was alleged in the petition “that no part of said notes has been paid except the payments which appear as credits on said notes, the date and amount of which have been heretofore set out, and the same now remain due and unpaid,” etc. The credits referred to had been specified in a former part of the pleading. Held, the petition was not subject to a general demurrer on the ground that it did not appear that all legal offsets, payments and credits had been allowed.</p> <p>" 2.—Survivor of Community—Powers—Extension of Debts—limitation.</p> <p>Where it appeared from the allegations of plaintiff’s petition that the surviving wife had duly qualified as survivor of the community, and as such survivor had entered into an agreement in writing with the creditors of the estate, including the plaintiff, by the terms of which their debts were not to be paid until a certain date named, which was more than four years after the original due dates of said debts, held, that the survivor of the community had the power to make said agreement, and plaintiff’s petition was not subject to a special exception setting up the statute of limitation.</p> <p>3. —Claims Against Estate—Priority of Payment—Pleading.</p> <p>Because it appeared from the allegations of plaintiff’s petition that, according to an agreement between the survivor of the community and certain creditors of the estate, including the plaintiff, that certain other debts were to be paid first out of the assets of the estate, this was no reason why said creditors could not file suit upon their claims after maturity; and plaintiff’s petition was - not subject to special exception because it was not alleged that the debts having precedence had been paid.</p> <p>4. —Community Debt and Foreclosure—Parties—Surviving Wife.</p> <p>In a suit against an administrator to foreclose a lien upon community property the administrator can not complain because the surviving wife is made a party defendant.</p> <p>5. —Note—Maturity—Interest.</p> <p>A note which bears interest from maturity will bear interest from said date even though the time of payment be extended.</p> <p>6.—Stipulated Attorney’s Fee—Judgment for.</p> <p>Where a note calls for ten percent of principal and interest unpaid, as an attorney’s fee, if placed in the hands of an attorney for collection, it is only necessary for plaintiff to prove the condition precedent, viz., the placing of the note with án attorney for collection to entitle him, prima facie, to the sum which the maker of the note agreed to pay in such event; and in the absence of evidence of an agreement with attorneys for a less fee, and of any question as to the reasonableness of such fee the court should enter judgment for the fee stipulated in the note.</p>

<p>Appeal from the District Court of Brazos County.</p>

<p>Appeal from the District Court of Liberty County.</p>

<p>1.—Fundamental Error.</p> <p>Fundamental error in the proceedings in the trial court may be presented, and will be considered on appeal, although no assignment is filed in the trial court.</p> <p>Z.—Same—Judgment for Plaintiff not Suing—Nullity.</p> <p>A judgment in favor of a person not a party to the suit is a nullity, both as to such person and the defendant.</p> <p>3. —Same—Same.</p> <p>Suit was filed in a Justice Court by one person for $19.95; judgment was rendered for $15 against the defendant, but in favor of a partnership of which the plaintiff and another constituted the members. Held, the judgment was a nullity, and was properly enjoined by the District Court.</p> <p>ON BEHEADING.</p> <p>4. —Ambiguous Judgment—Case Distinguished.</p> <p>The case of Dunlap v. Sutherlin (63 Texas, 38) has no application to a case in which there is no ambiguity as to the party in whose favor the judgment was rendered.</p> <p>5. —Judgment—Amendment—Rev. Stats., Art. 1357.</p> <p>Where the suit is by one party and the judgment is in favor of another, article 1357 Revised Statutes furnishes a remedy by which the judgment may be made to conform to the record.</p>

<p>1. —Deed—Description.</p> <p>A description of the land conveyed in a deed as “320 acres patented to J. H. Durritt, Jr., on the waters of Dill creek in Nacogdoches county,” is sufficient.</p> <p>2. —Same—Omission of Call—Plat.</p> <p>A description in a deed, defective in that it omits two of the calls, may be aided by a plat of the land which explains the mistake and shows the correct boundaries.</p> <p>3. —Limitation—Ten Years—Evidence.</p> <p>A claim of title by limitation under the ten years statute to land erroneously supposed to be included in the boundaries of a deed can not be sustained in the absence of actual possession of such land. Constructive possession extends only to the boundaries of the deed.</p>

<p>1. —Juror Disqualified as Witness.</p> <p>Article 3141 Revised Statutes provides that a witness in any case shall be disqualified to serve as a juror in such case. When, upon the trial of a case, the defendant called as a witness, upon a material issue, one of the jurors who had been impaneled to try the case, to the testimony of which witness the plaintiffs objected on the ground that, being a juror, he was not a competent witness, which objection was by the court overruled, and the witness allowed to testify; but afterwards, by the consent of both parties, the juror was excused from the panel and the trial proceeded with eleven jurors, held, not error to overrule plaintiff’s application for continuance based on the admission of said testimony.</p> <p>2. —Fraud—Material Testimony.</p> <p>Where the genuineness of a contract dated in 1895 was a vital issue in the ease, and the defendant testified that, under the terms of said contract, she bought lumber from a certain party and made improvements in 1895 on the land in controversy, the testimony of said party that he was not in the lumber business in 1895, and that the date of his billhead containing the items of lumber exhibited by defendant had been changed from 1897 to 1895, was material upon the issue of fraud and forgery.</p> <p>3. —Purpose of Testimony—Answers of Counsel.</p> <p>When counsel for plaintiff, in answer to questions by the court as to the purpose of .testimony offered, replied in the hearing of the jury that it was offered for the purpose of contradicting the defendant, and to show that there was absolutely nothing in her defense, and that it was entirely fictitious, the defendant was not prejudiced by such replies, since plaintiff alleged in his pleading that the contract on which defendant relied was a forgery.</p> <p>4. —Charge—Burden of Proof.</p> <p>In cases in which evidence is introduced upon the issues pro and con by the respective parties there is no occasion for an instruction upon the burden of proof; the question then is merely one of preponderance of the evidence.</p> <p>5. —Special Issues—Sufficiency</p> <p>The plaintiff, in trespass to try title, relied on his superior title as vendor to recover the land in controversy; the defendants relied on a contract by which they were to have title to the land on certain conditions, which had been performed; the issue was as to the genuineness of the contract. If the contract was a forgery the defendant could have no equities under the same to adjust, and the court did not err in instructing the jury that they need not answer other special issues concerning such equities if they found that said contract was a forgery.</p> <p>6. —Depositions not Responsive—Hearsay.</p> <p>When the answers of a witness are not called for nor responsive to the interrogatories, and it is evident that the answers are hearsay, they should be suppressed on motion.</p> <p>7. —Forgery—Circumstantial Evidence.</p> <p>When a contract relied on by defendants is attacked by the plaintiff as a forgery, the fact that one of the defendants was not in the courtroom during the trial and evaded the service of a subpoena by the plaintiff was not an immaterial circumstance under the facts of this case.</p> <p>8. —Payment of Money—Insolvency—Rebuttal.</p> <p>When the defendant claims to have paid a large sum of money in the purchase of the land in controversy at a certain time, the fact that she was obliged to vacate a house for the nonpayment of rent about the same time was not immaterial evidence in rebuttal.</p> <p>9. —Express Contract—Pleading—Proof.</p> <p>When a party alleges an express contract it is not proper to submit an issue of quantum meruit.</p> <p>10. —Costs—Judgment Against Wife.</p> <p>When the suit is against the husband and wife on a community obligation a judgment against the wife as well as the husband, for costs, is error, but not such under the circumstances of this case as will cast the appellee in the cost of appeal.</p> <p>11. —Trivial Errors—Affirmance.</p> <p>Even though a record be not entirely free from error, still, when the errors are few- and trivial, and the judgment reflects the very right and truth of the matter, the Appellate Court will not remand the case for a new trial.</p> <p>12. —Conclusions of Fact—Statute Construed.</p> <p>Article 1024a, Revised Statutes, as amended by the Twenty-ninth Legislature, simply requires the Courts of Civil Appeals “to decide all issues presented to them by proper assignments of error.” This does not mean that the Appellate Courts should set out in full the evidence admitted or excluded, with the objections made thereto, in passing on questions of fact. This might be done by the plaintiff in error in his application to the Supreme Court, if deemed necessary to a proper understanding of the case.</p>

<p>Mechanic’s Lien—Landlord’s Lien—Priority.</p> <p>A tenant, with the consent of the landlord, built a house on the leased premises, with the understanding that, upon the termination of the lease, the tenant would have the right to remove said house, provided the rent was all paid, otherwise he should not have such right. This contract was never recorded. The house, having been damaged by fire, was repaired by the plaintiff, a mechanic, at the request of the tenant, the mechanic having been previously told by the landlord that the building belonged to the tenant; the mechanic fixed his lien upon the building, as required by the statute; the tenant failed to pay the mechanic for the repairs on the building, and failed to pay the landlord the rent due on the premises. Held, that the landlord had no lien on said building under either articles 3235 or 3251 of the Revised Statutes, concerning landlord and tenant, to secure the unpaid rent, and even if the contract between the landlord and tenant, forbidding the removal of the building until the rent was all paid, could be regarded as a chattel mortgage, it was of no effect as against the mechanic, who had no notice of its existence.</p>

<p>Appeal from the District Court of Galveston County.</p>

<p>1. —Conflicting Evidence—Instructed Verdict.</p> <p>Where it expressly appeared from an agreed statement of facts that the evidence was conflicting on issues of fact which were material, it was error for the court to instruct a verdict.</p> <p>2. —Patent—Collateral Attack.</p> <p>The existence of the facts which authorized the issuance of a patent by the State can not be controverted in a collateral proceeding.</p> <p>3. —Same.</p> <p>In a suit of trespass to try title to certain unsurveyed school lands the issuance of a patent to the homestead tract of 160 acres was conclusive evidence of title to the same in the patentee and of his right to make the same the basis of an application to purchase additional lands under the Act of April 15, 1901.</p> <p>4. —Purchase df School Lands—Forfeiture—Burden of Proof.</p> <p>Where in a suit of trespass to try title to school land the defendant claims that the plaintiff had forfeited his right to the same by a failure to make improvements within the time required by law, the burden of proof is on the defendant to show such forfeiture.</p> <p>5. —Same—Act of 1901 Construed.</p> <p>It seems that under the provisions of the Act of April 15, 1901, concerning the purchase of school lands, it is not contemplated that the land shall be forfeited for the failure alone to make improvements.</p>

<p>1. —Market Value—Testimony.</p> <p>Where in a suit for damages to a shipment of horses it appeared from the testimony of the plaintiff that his knowledge of the market value of said horses at their destination at the time they should have arrived there was but a reproduction of what had been communicated to him by letters and telegrams received from persons living in that neighborhood who were not shown to have had any knowledge themselves of said market, the testimony should have been excluded, and this, although the witness freely and repeatedly stated .that he knew the market value.</p> <p>2. —Shipping Contract—Invalid.</p> <p>A clause in a shipping contract arbitrarily fixing the amount of damages which the shipper might recover, is void as against public policy. And so of a clause relieving the carrier from damages resulting from certain named risks and from “any and all other causes whatever.”</p> <p>3. —Designation of Route—Deviation.</p> <p>When a carrier deviates a shipment from the route designated by the shipper it thereby deprives itself of the exemptions contained in the shipping contract.</p>

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

<p>Appeal from the District Court of Wise County.</p>

<p>1. —Concurrent Eire Insurance—Three-fourths Clause—Valuation—Mistake.</p> <p>Where the policy of insurance by its terms permits concurrent insurance, but stipulates that the total insurance shall at no time exceed three-fourths of the actual cash value of the property insured, to avoid the policy for overvaluation there must be an intention to defraud on the part of the owner; an honest error of judgment or a mistake in valuation will not have that effect.</p> <p>2. —Same—Warranty—Definition.</p> <p>A warranty in an insurance contract is a statement made therein by the assured which is susceptible of no construction other than that the parties mutually intended that the policy should not be binding unless such statement be literally true. Where there is no stipulation that an over-valuation should operate as a forfeiture of the policy, the provision concerning valuation is not a warranty.</p> <p>3. —Same—Incumbrance.</p> <p>Where for the purpose only of changing the form of an incumbrance existing on the insured property at the time the polity was issued the legal title to the property was put in a third person for a few days, it was not such a breach of that clause in the policy forbidding a change of title as would avoid the policy.</p> <p>4. —Same—Invalid Assignment.</p> <p>Endorsed on a policy of insurance was an assignment of the same to third persons, but it was shown by the evidence that said endorsement was made by mistake, that there was no consideration for the same, and the policy was never delivered to the assignees. Held, said assignment was of no effect, and did not violate a clause of the policy forbidding an assignment of the same before loss, unless by consent endorsed thereon or added thereto.</p>

<p>1. —Building Contract—Measure of Damage.</p> <p>In a suit upon a building contract plaintiff alleged, in substance, that the contractor failed to construct the building according to the plans and specifications ; that he abandoned the contract before completion of the building, .and that the work done by him was not in accordance with said plans and specifications. The evidence showed that almost the entire damage claimed by plaintiff resulted from inferior work and material put into the building. Held, the proper measure of damage was the difference between the contract price and the cost of completing the building according to the plans and specifications, and not the difference between the value of the house as constructed and its value if it had been constructed according to the contract.</p> <p>2. —Defective Brief.</p> <p>When assignments of error and the propositions thereunder are not followed by a sufficient statement from the record, the assignments will not be considered.</p>

<p>Benefit Insurance—Death of Beneficiary.</p> <p>The constitution of a benefit insurance society (Woodmen of the World) provided that the beneficiaries of insurance certificates of its members should be “his wife, children, adopted children, parents, brothers, sisters or other blood relatives,” etc., and that on the death of the member after the death of the beneficiary named and without the designation of a new beneficiary, the benefit should be payable to the member’s “next living relation in the order named in this section.” The wife who was named as beneficiary having died, the member married again, died without designating a new beneficiary, and left surviving him such last wife, their child, and children of the preceding and of a third earlier marriage. Held, that the surviving widow, as the first relative in the order named in the constitution, was entitled to the benefit to the exclusion of all the children.</p>

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

<p>1. —Special Judge—Refusal to Act—Exchange of Judges—Jurisdiction.</p> <p>The regular judge of the District Court being disqualified the parties agreed upon a special judge who tried the case; upon appeal the judgment was reversed and the cause remanded; the special judge having moved from the county in which the case was pending refused to return and try it again; thereupon the regular judge certificated to the Governor his disqualification, and the Governor ordered an exchange with the district judge of an adjoining district, naming him; the exchange was made, and the case tried by the judge of the adjoining district. Held, the trial and judgment were lawful and valid.</p> <p>2. —Insurance—Death—Suicide or Accident—Burden of Proof.</p> <p>A benefit certificate contained the following provision: “If the member holding this certificate should die ... by his own hand or act, whether sane or insane . . . this certificate shall be null and void and of no effect.” The evidence was circumstantial, and conflicting as to whether the death of the member was by suicide or accident and would support a verdict for either theory. Held, the burden of proving suicide being upon the insurer, the verdict of the jury finding that the death was accidental should not be disturbed.</p>

<p>1. —Bankruptcy—Unlawful Preference—Notice.</p> <p>A merchant in failing circumstances sold Ms stock of merchandise and applied the proceeds to the payment of two debts for which his brothers were sureties, one of the debts evidenced by note would not have been" due for nearly a year; the holder of this note was not a resident of the same county with the merchant, but he sent the note for collection to a bank which was doing business in said county, said bank being the regular correspondent at that "place of said creditor; the note was paid to the bank by one of the sureties on the note. The owner of the note did not know of the insolvency of the merchant, but the officials of the bank did. Held, the attempted preference was unlawful, and notice to the bank of the insolvency of the merchant was notice to the owner of the note.</p> <p>2. —Same—Extinguishment of Note.</p> <p>The payment of a note by the maker in an attempted unlawful preference of creditors does not extinguish the note as evidence of the debt as to endorsers or sureties thereon. Faires v. Cockerell, 88 Texas, 428, distinguished.</p>

<p>Appeal from the District Court of Cooke County.</p>

<p>Appeal from the District Court of Wise County.</p>

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

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

On a former trial a demurrer to the petition was sustained and the judgment for defendant thereon was reversed on appeal. Crusetumer v. International & G. N. R. R. Co., 86 S. W. Rep., 778.

<p>Pleading—loan—Purchase of Stock.</p> <p>Plaintiff, suing to recover back money alleged to have been loaned to defendant, could not recover upon proof that it was paid to defendant to purchase certain shares of its corporate stock, though the same was never issued nor delivered to plaintiff, and where the evidence as to whether the transaction was a loan or a purchase was conflicting it was error to direct a verdict for plaintiff.</p>

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

<p>1.—Illegitimate Child—Beneficiary Certificate.</p> <p>The constitution of the Ancient Order of United Workmen contained the following provision: “Each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him.” Held, it was lawful and proper for a member of said order, under the foregoing provision, to designate an illegitimate daughter as one of the beneficiaries, both because she was related to him by blood and because, under the evidence in this case, she was dependent on him.</p> <p>2.—Same—Case Distinguished.</p> <p>The case of West v. A. O. U. W. of Texas (14 Texas Civ. App., 471), is distinguishable from this case in that, in the above case, the woman made a contract of concubinage to get the insurance money, while in this case the child was innocent.</p>

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

<p>1.—Telegram—Delivery—Diligence.</p> <p>The plaintiff was permitted to ask defendants’ manager if he used the telephone in his office in his efforts to find the addressee of the telegram. The question was objected to on the ground that defendant could not discharge its obligation by delivering the message by telephone. Held, the objection was properly overruled because that was not the object or purpose of the question.</p> <p>2. —Same—Evidence.</p> <p>Certain witnesses for defendant testified that they were old residents of Beaumont and generally familiar with the city, hut had never heard of St. Charles street. They were then asked if they knew the addressee of the telegram. Held, -properly excluded because immaterial.</p> <p>3. —Argument of Counsel.</p> <p>In his closing argument counsel for plaintiff used the following language: “You need not fear that a large verdict will not be sustained by our higher courts, because large verdicts from this court have been sustained.” The trial court promptly sustained an objection by defendant, and instructed counsel to desist. Held, in the state of the record, not reversible error.</p>

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

<p>Separate Coach Law Construed.</p> <p>By the Act of the Twenty-second Legislature, Laws 1891, page 44, railroad companies doing business in this State as common carriers of passengers for hire must provide separate coaches, whether the particular train is actually carrying both white and negro passengers at the time or not. Each separate coach or compartment must bear in some conspicuous place appropriate words, in plain letters, indicating the race for which it is set apart. This statute is not repugnant to the federal organic law.</p>

<p>Carrier—Limiting Liability—Charge.</p> <p>Where cattle to be transported over several lines of road were carried under a contract limiting the liability of each carrier to the damage done on its own line, and the evidence showed that some of the damage to the cattle did not occur on defendant’s line, it was error to charge the jury that it was the duty of the defendant to use ordinary care and diligence in handling and transporting said cattle from the point of shipment to destination.</p>

<p>Burning of Cotton—Negligence—Evidence.</p> <p>In a suit by one carrier against another for the value of cotton burned in transit, evidence considered, and held to make a prima facie case of negligence against the defendant.</p>

<p>1. —Breach of Promise—Sufficiency of Evidence.</p> <p>Evidence considered, and held sufficient to support a verdict against the defendant in a breach of promise suit. It is the peculiar province of the trial court to pass on the credibility of witnesses.</p> <p>2. —Newly Discovered Evidence—New Trial.</p> <p>When newly-discovered evidence is only cumulative and corroborative of evidence used on the trial it is not sufficient ground for new trial.</p> <p>3. —Hearsay Testimony.</p> <p>Statements by or conversations with third persons, in the absence of a party to the suit, are hearsay, and not admissible against such party, even though such statements or conversations be concerning facts about which a witness testifies and the cause of the witness remembering them.</p> <p>4. —Motives—Immaterial.</p> <p>When, in a suit for actual and exemplary damages, a verdict is returned for only actual damages, the exclusion of testimony as to defendant’s good motives was harmless.</p> <p>5. —Conflicting Testimony—Question of Fact.</p> <p>The testimony being conflicting as to whether or not certain marked copies of newspapers were sent by the defendant to the plaintiff, it was a question of fact for the jury, and not exclusively for the court, whether said papers were sent by the defendant.</p> <p>6. —limitation—Renewal of Contract.</p> <p>In a suit for breach of promise of marriage, although it appeared from the pleading and evidence that the first promise of marriage was made more than one year before the suit was filed, still, if it appeared also that such promise was repeated and renewed from time to time, to a period within less than one year before suit filed, the cause is not barred by limitation.</p> <p>7. —Conduct of Jury.</p> <p>In a suit for breach of promise and seduction it was shown, on motion for new trial, that, after the jury had retired to consider of their verdict, and during their deliberation, it was suggested by some of the jurors that a certain child, which the plaintiff had with her in the courtroom, looked like the defendant, and should have been introduced in evidence. Held, not such misconduct as to require a new trial.</p>

<p>Appeal from the District Court of Grayson County.</p>

<p>1. —Malicious Prosecution—Irrelevant Testimony.</p> <p>In a suit for malicious prosecution, the issue being whether or not the officer arresting plaintiff was acting for the defendant company in so .doing, or was pursuing his duties as a policeman, it was irrelevant and immaterial what charge said officer preferred against a third party upon arresting him.</p> <p>2. —Same—Mental Anguish—Sickness of Family.</p> <p>There being no allegation in plaintiff’s petition as to the health of his family at the time of his arrest, as bearing upon the question of mental anguish, the admission of testimony on that subject was of doubtful propriety.</p> <p>3. —Witness—Bias or Prejudice—Evidence.</p> <p>It was error for the court to refuse to allow defendant to prove, on cross-examination of one of plaintiff’s witnesses, that said witness had a similar suit pending against defendant company growing out of the same transaction.</p> <p>4’.—Improper Argument.</p> <p>During the trial of the ease an assistant county attorney approached the trial judge and stated that the grand jury requested that some of the witnesses in the case be released from the rule and allowed to go before them without stating the purpose for which the witnesses were wanted; counsel for plaintiff thereupon objected and declared, in the presence and hearing of the jury, that it was “a most extraordinary request,” and said counsel afterwards, in his argument to the jury, commented upon the occurrence, and added that the foreman of the grand jury was vice-president of the defendant company. Held, the matter having been brought to the attention of the jury by the counsel for plaintiff himself, he should not have been allowed to refer to it in his argument to the jury.</p> <p>5.—Same.</p> <p>The impression made upon the minds of the jury by improper argument is not always eradicated by instructions of the court to disregard the same, and counsel, in making such arguments, take the chances of a reversal.</p> <p>6.—Evidence—Special Purpose—Charge.</p> <p>Whenever evidence is admitted only for a particular purpose it is error for the court to refuse a charge limiting it to that purpose.</p>

<p>1. —Suit by Heirs—Testimony—Article 2302, Revised Statutes, Construed.</p> <p>In a suit by heirs to recover land conveyed by the intestate it was not error to refuse to allow one of the plaintiffs to testify as to statements by the intestate concerning said conveyance, although said statements were made in the presence of the defendant.</p> <p>2. —Corroborative Testimony—Statements Ante Litem Hotum.</p> <p>To the general rule that evidence of what a witness has said out of court can not be received in support of his testimony in court there is a well established exception, viz.: Whenever a witness is sought to be impeached by showing that he has made declarations inconsistent with the testimony given by him upon the trial, and the tendency of such impeaching evidence is to impute to the witness a design to misrepresent from some motive of interest, or to show that his testimony is a fabrication, a former declaration, made by him at a time when the supposed motive did not exist, is admissible in confirmation or corroboration of his testimony.</p> <p>3. —Same—Issues—Competent Testimony.</p> <p>When the plaintiffs alleged and introduced testimony to show that the grantee in the deed in question did not know of, and had never accepted, said deed during the lifetime of the maker, her declarations during the lifetime of the maker showing that she did know of, and had accepted said deed,, were pertinent and proper testimony.</p> <p>4. —Second Deposition of Same Witness—Discretion of Court.</p> <p>Where the defendant propounded interrogatories to a witness and the plaintiff filed cross interrogatories, procured a commission and took the answers, and subsequently the defendants procured a commission and took the answers of the witness again to the same interrogatories, the admission of the deposition taken by the defendant was a matter in the discretion of the court, and in the absence of a showing that such discretion was abused to the material injury of the plaintiffs, the court’s action will not be reviewed.</p> <p>5. —Absence of Evidence—Refusal to Submit Issue.</p> <p>Because there was no evidence of sufficient probative force to have warranted the jury in finding that the grantee in the deed in question knew at any time that the deed was merely colorable, and the intention of the grantor was not to pass title to the land thereby to the grantee, it was not error to refuse to submit such issue to the jury.</p> <p>6. —Deed—Intention of Grantor—Effect.</p> <p>Where the husband for a valuable consideration makes, acknowledges and places on record a deed to his wife as a result of an understanding between them, the deed becomes an executed contract, and the secret, undisclosed intention of the grantor not to divest himself of the title to the land would not prevent the deed from taking effect.</p> <p>7. —Fraudulent Conveyance—Binding Between Parties.</p> <p>Where a husband makes a deed to his wife for the purpose of defrauding his creditors neither he nor his heirs can avoid the same by pleading and proving such purpose.</p> <p>.8.—Deed—Intention of Parties—Effect.</p> <p>Where neither of the parties to an instrument in the form of a deed intends that the title shall pass thereby the title will remain in the grantor.</p> <p>9.—Interrogatories Taken as Confessed—Discretion of Court.</p> <p>Whether or not interrogatories which a party refuses to answer should be taken as confessed is a question addressed to the sound discretion of the presiding judge under all the circumstances, and unless it appears that such discretion has been abused his action will not be disturbed.</p>

<p>1. —Railway—Overflow—Damages—Permanent Depreciation.</p> <p>The measure of damages recoverable for overflow of land by surface water, caused by the railway structures, is the depreciation in the value of the real estate injured, treating the structures and their effect on the land as permanent, where the overflows are repeated at irregular but certainly recurring intervals, on occasions of heavy or protracted rainfall, and, the structures being apparently intended to be permanent, the effect on the land will be so likewise.</p> <p>2. —Land—Permanent Damages—Proof of Title.</p> <p>Possession under claim of title, with paroi evidence tending to show title in plaintiff and not objected to, will be sufficient proof of title to support a recovery of damages for permanent injury to the land.</p>

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

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

<p>Appeal from the District Court of Jasper County.</p>

<p>1. —Local Option Election—Election Law.</p> <p>By the provisions of section 93 of the General Election Law of 1905, said law applies to and regulates the conduct of local option elections.</p> <p>2. —Same—Illegal Ballots—Signature of Presiding Judge.</p> <p>The provisions of the election law requiring the presiding judge of the election to write his name on the blank side of the official ballot before delivering it to the voter, and prohibiting the counting of any ballots not so endorsed, are mandatory.</p> <p>3. —Same—Same—Judgment.</p> <p>In a contest of a local option election which resulted in favor of prohibition the 'contestees can not complain of a judgment which ordered a new election instead of declaring the result of the first election as against prohibition.</p>

<p>1. —Suit by Heirs—Testimony of Heir—Article 2302, Rev. Stats., Construed.</p> <p>Where the plaintiffs sued as heirs of their father for his interest in community property conveyed by the surviving mother to one of the children, such child, the grantee in the deed, may testify concerning the delivery of the deed to her by the mother. Such testimony does not come within the prohibitions of article 2302, Revised Statutes.</p> <p>2. —Same.</p> <p>In a suit by certain heirs against other heirs for an interest in property of the estate, where one of the defendants claims the land in controversy, not as an heir, but as a grantee from the surviving mother, the provisions of article 2302, Revised Statutes, do not apply.</p> <p>3. —Survivor—Payment of Debts—Pleading—Issue.</p> <p>Where the issue made by the pleadings was whether or not the surviving wife had enlarged her interest in the community estate by the payment of community debts with her separate means, testimony as to an agreement between her and the heirs concerning the use and management of the estate by her was not admissible.</p> <p>4. —Same—Reimbursement.</p> <p>A surviving wife who pays community debts can not be held an intermeddler paying a debt with which she has no concern, and when she pays such debts out of her separate estate she will be subrogated in equity to the rights of the creditors, and may reimburse herself by taking property of the estate, provided it be fairly done, and not to the detriment of the estate.</p> <p>5. —Same—Same.</p> <p>If a surviving wife in fact had an interest in the community estate equal to that which she undertook to convey it would be immaterial upon what idea of right she based her action.</p>

<p>Appeal from the District Court of San Jacinto County.</p> <p>Tried below before Hon. G. T. Turaley.</p>

<p>1. —Sale of Cattle—Price—Evidence.</p> <p>A witness for the plaintiff as to the prices at which certain cattle were sold by a commission company admitted, on cross-examination, that he testified from records kept by the company, which records were made by a clerk of the company upon information furnished by the witness, that he was obliged to consult said records, and that he only knew that said records were correct because the clerk who made them was entrusted with that duty. Held, the testimony should have been excluded on objection that the witness was not testifying from his own knowledge, but from records not made by the witness. Texas & P. Ry. Co. v. Leggett (12 Texas Ct. Rep., 919) followed.</p> <p>2. —No Issue—Evidence.</p> <p>Where there was no evidence that cattle shipped to market failed to arrive in time to get a “fill” before being weighed, it was error to admit evidence as to the increase of weight by a “fill.”</p> <p>3. —Supposititious Case—Error.</p> <p>Where the weight of calves included in a shipment of cattle was agreed upon, it was error to admit testimony as to the shrinkage during transportation of calves of a different weight.</p>

<p>School Land—Application to Purchase—Prematurity.</p> <p>An award of school land upon a premature application to purchase the same will be upheld when there are no superior rights.</p>

<p>Appeal from the County Court of Ellis County.</p>

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

<p>1. —Landlord and Tenant—Unsigned Contract. „</p> <p>In a suit by a tenant against his landlord for illegally suing out a distress warrant, the issue as to what the rental contract was was the vital issue; the contract was reduced to writing and handed by the landlord unsigned to the tenant with the request to look over it, and sign it, and return it; the tenant never signed the writing, but kept it and produced it on the trial; the landlord offered to testify that the tenant told him shortly after receiving the. writing, that it was all right. Held, the testimony was competent as an admission against interest; and the writing was admissible with the other evidence relating thereto for the jury to determine whether or not it embodied the contract.</p> <p>2. —Allegation by Defendant—Implied Denial—Evidence.</p> <p>Where the defendant tenders an issue by his pleading the law implies a denial by the plaintiff, and the plaintiff may introduce testimony to disprove such issue without pleading to that effect.</p> <p>3. —Landlord’s Lien—Intent to Defraud.</p> <p>When the tenant commits an act which gives the landlord a right to a distress warrant the intent on the part of the tenant to defraud the landlord is immaterial.</p> <p>4. —Tenant—Duty to Repair.</p> <p>In the absence of an agreement to the contrary it is the duty of a tenant to make necessary repairs on the rented premises.</p> <p>5. —Distress Proceedings—Reconvention—Separate Suit.</p> <p>The defendant in a distress proceeding may either reconvene in that suit or file a separate suit for damages.</p>

<p>1. —Personal Injuries—Evidence—Expressions of Pain.</p> <p>The suffering of a party in many cases can only be ascertained by expressions of the party himself, and this being the best evidence of which the case is susceptible, such evidence is admissible if such expression is usual and natural under such conditions.</p> <p>2. —Same—Appearances—Nonexpert Testimony.</p> <p>Nonexpert witnesses may testify as to whether or not a person appeared to be sick and suffering or otherwise.</p> <p>3. —Eailroad Track—Condition—Degree of Care.</p> <p>A railroad company must exercise the highest degree of care to keep its track in proper condition for the operation of -its trains; a reasonable degree of care is not sufficient.</p>

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

<p>1,—Partnership Debt—Extension of Time—Promise—Consideration.</p> <p>A promise by a creditor of a partnership to a new member of the partnership, who was not bound for the debts of the old partnership, to extend the time of payment of one of the old debts, was without consideration and •not binding on the creditor. '</p> <p>2. —Same—Conditional Promise.</p> <p>A conditional promise to extend the time of payment of a debt is not binding when the condition was never complied with.</p> <p>3. —Same—Release of Surety.</p> <p>Unless the agreement to extend the time of payment of a debt is of such binding force as to prevent suit against the principal debtor during the alleged extension, it is not such an agreement as will release a surety.</p> <p>4. —Retiring Partner—Liability.</p> <p>Evidence' considered, and held insufficient to show that a retiring partner had been released by a creditor from liability for the debts of the partnership.</p>

<p>. Appeal from the District Court of Comal County.</p>

<p>Appeal from the District Court of Travis County.</p>

<p>1. —Briefs—Preparation of—Bule 31.</p> <p>When no “statement” from the record is subjoined to explain or support a proposition or assignment of error, as required by Rule 31 for the Courts of Civil Appeals, the assignment will be disregarded, especially when, as under the present law, the statement of facts consiste of a voluminous stenographer’s report of the trial.</p> <p>2. —Same—Rule 30.</p> <p>When neither the assignment of error, nor the proposition under it distinctly specifies any error, as required by article 1018, Rev. Stats, of 1879, and Rule 30 of the Court of Civil Appeals, such assignment will not be considered.</p> <p>3. —Same—Rule 29.</p> <p>When an assignment of error is not copied in the brief, as required by Rule 29, it must be regarded as abandoned, and will not be considered.</p> <p>4. —Chain of Title—Void Deed.</p> <p>The absence of a privy acknowledgment to a deed executed by a married ' woman in 1842, renders such deed void, and thus breaks the chain of title.</p> <p>5. —Proof of Title by Secondary Evidence.</p> <p>To prove title to the land in controversy in plaintiff’s grantors, plaintiff testified by deposition as follows: “There was also a deed from the Bodman heirs to George H. Bringhurst.” Held, a mere statement of a conclusion without any facts upon which it can be based, and the, fact that the original- deed was destroyed by fire and could not be produced, did not dispense with the observance of the rules of evidence as to its execution and contents.</p> <p>6. —Presumption of Grant.</p> <p>The presumption of a grant is always a presumption of fact, and not of law, to be determined from the evidence.</p> <p>7. —Limitation—Possession—Privity.</p> <p>The different periods of possession of land by different parties not holding in privity can not be tacked one to the other to make out the necessary period of limitation.</p>

<p>Appeal from the District Court of Colorado County.</p>

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

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

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

<p>Appeal from the County Court of Kacogdoches County.</p> <p>Tried below before Hon. Robert Berger.</p>

<p>Appeal from the County Court of Harris County.</p>

In a suit to set aside a deed on the ground that the same was fraudulently-obtained, the refusal of the court to give an instruction to enable the jury to determine whether the statements by which the deed was obtained were deceitful and fraudulent, was harmless in view of the fact that the jury found, in answer to a special issue, that the grantors voluntarily executed said deed without any misleading or deceptive statements. 2. —Dignity of Calls in Grant.

<p>Street—Prescription.</p> <p>Where the public, as contradistinguished from the municipality, has used a piece of land for the purposes of a street in such manner and for such time as to acquire an easement as against the owner, the city, within whose limits the land is situated, can assert the rights of the public thus acquired without having itself in its municipal capacity claimed the easement for the period of prescription.</p>

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

<p>Appeal from the County Court of Harris County.</p>

<p>1. —Pleading—General Denial.</p> <p>In a suit against a railroad company for the value of six cases of shoes which plaintiffs alleged they delivered to defendant for transportation from B. to H., and which were never delivered or accounted for by defendant, the defendant answered by general denial, and by special plea under oath in which it admitted issuing a bill of lading for 55 cases of shoes, hut averred that in fact only 49 cases were delivered to it by plaintiffs, and the issuance of the bill of lading for 55 cases was induced by the fraud of the plaintiffs. Held, that by virtue of the general denial evidence was admissible that the bill of lading was issued for 55 instead of 49 cases of shoes through mistake of defendant’s agent, and that it never received 55 cases from plaintiffs.</p> <p>2. —Bill of Lading—Nature of.</p> <p>A bill of lading is twofold in character; it is a receipt for the goods and it is a contract to carry and deliver the same. In its character of receipt it may be contradicted like any other receipt.</p>

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

<p>1.—Personal Injuries—Contributory Negligence—Charge.</p> <p>In a suit by a husband for personal injuries to his wife, where the charge of the court on the liability of the defendant was not clearly expressed and was-easily susceptible of the construction that the plaintiff might recover notwithstanding the negligence of his wife, the cause should be reversed.</p> <p>3.—Same—Cold Coach—Charge.</p> <p>In a suit by a husband for injuries resulting to his wife from traveling in a cold and uncomfortable coach, it not appearing, that the wife knew or was informed by any one that a sleeper, which was warm, was attached to the train, the wife was not guilty of contributory negligence in remaining in the cold coach. She was forbidden by law to occupy the negro coach, and not expected to occupy the smoking car, although they were both warm and comfortable.</p> <p>3. —Same—Distinct Causes of Injury—Charge.</p> <p>It was not error for the court, in a suit for personal injuries, to give a special charge at the request of plaintiff submitting the various causes of injury alleged, as distinct grounds of recovery, although the court had in its main charge submitted the combined causes as ground for recovery.</p> <p>4. —Transfer of Passengers—negligence.</p> <p>It appearing from the undisputed evidence that it was about dark when defendant’s passengers were required to transfer from one train to another around a wreck; that plaintiff’s wife had no means of knowing in advance that the walking was muddy, or that the defendant had failed to provide dry means of transfer, the court correctly refused to charge, as requested by defendant, that if the plaintiff, by the exercise of care, could have learned of the condition of the ground before she made the transfer, then she could not recover for any of its consequences.</p> <p>5. —Conflicting Testimony—Failure to Produce Evidence.</p> <p>The evidence being conflicting as to the negligence of the defendant in providing food for plaintiff’s wife during the delay of the train, and the circumstances under which it was supplied to the other passengers, it was error for the court to exclude the admission of the plaintiff’s wife that there were two other ladies on the same train, and she knew where they lived, but had neglected to take their testimony.</p> <p>6. —Cause of Illness—Hearsay.</p> <p>The defendant offered to prove by the doctor who waited on plaintiff’s wife that he told plaintiff’s wife that her rheumatism was not caused by the exposures of her trip, and advised her not to sue. Held, the doctor’s opinion expressed to the wife was incompetent testimony, though his opinion as an expert to the same effect was admissible in the form of direct testimony.</p> <p>7. —Preponderance of Evidence—Humber of Witnesses—Charge.</p> <p>The court, in charging on the burden of proof, added that “the greater number of witnesses does not of itself determine the preponderance of the evidence.” Held, misleading.</p> <p>8. —Improper Argument.</p> <p>Remarks of counsel for plaintiff considered, and held prejudicial to defendant and cause for reversal.</p> <p>9. —Opportunity to Procure Food—Duty of Railroads to Passengers.</p> <p>It is the duty of railroad companies to use due care to furnish opportunity to purchase food when its passengers are delayed by a wreck, especially if due to the company’s fault; and in doing this they must consider the sex, age, physical condition and actual environments of each passenger. Reasonable provision for men alone, and others in average physical condition, would not be sufficient. It is otherwise as to regular meals.</p> <p>10. —Duty to Carry Promptly.</p> <p>It is the duty of railroad companies to carry their passengers promptly.</p>

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

<p>1. —Railway—Receiver—Mortgage Foreclosure—Classification of Claims.</p> <p>Where a railway has been placed in the hands of a receiver in process of foreclosure at suit of bondholders, claims of creditors for supplies furnished for its operation and maintenance before the receivership will not be entitled to payment out of the proceeds of the sale of the corpus of the property until the bonds secured by mortgage have first been satisfied, in the absence of an inequitable diversion of its earnings under the receivership to the betterment of the bondholders’ security.</p> <p>2. —Same—Property Coming to Receivers’ Hands.</p> <p>Claims for supplies furnished the railway for operation and maintenance before the appointment of a receiver, and coming to his hands and used by him, are not to be classed with debts created by the receiver, nor given priority of payment, on foreclosure sale, over the debts secured by the mortgage.</p> <p>3. —Same—Statutory Lien.</p> <p>Claims for coal or oil furnished for the operation of a railway are not for “material for construction or repairs” within the meaning of article 3294, Revised Statutes, nor protected by the lien thereby given.</p> <p>4. —Same.</p> <p>A claim for tools furnished the railway company is not one for “material for construction or repairs,” nor entitled to a lien under article 3294, Revised Statutes.</p> <p>5. —Same.</p> <p>Claims for materials furnished for construction or repair of a railway, though entitled to a statutory lien (Rev. Stats., arts. 3294-3301), and though such lien has been fixed as prescribed by the statute, are not entitled to a lien on the railroad or its proceeds under foreclosure sale unless used for new construction and constituting a betterment of the mortgagee’s security; such lien, is only enforceable against the particular building or article constructed or repaired.</p> <p>6.—Statute—Classification of Claims—Equity.</p> <p>Judgments for ordinary debt recovered against a railway company in suits brought after the appointment of a receiver are not within the terms of article 1472, Revised Statutes, regulating the classification and priority of claims against funds coming into the hands of a receiver; and the court may, under its general equity powers, postpone their payment to claims for supplies, material and repairs used in operation and maintenance, and furnished within such time prior to the receivership as to equitably entitle them to preference in payment out of the net earnings of the road in the hands of the receiver.</p>

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

<p>1. —Objections to Evidence—Assignments of Error—Appeal.</p> <p>Appellants will be confined on appeal to the specific objections made to evidence in the trial court, and propositions set out in the brief will not be considered unless based on such objections as shown by the bill of exceptions.</p> <p>2. —lost Deed—Secondary Evidence—Deed Records.</p> <p>A proper predicate having been laid for the introduction of secondary evidence of a lost deed, the pages of the record book of deeds containing a copy of such deed were competent and proper as a circumstance to prove the existence, execution and contents of said deed.</p> <p>3. —Same—Circumstantial Evidence of Genuineness.</p> <p>The fact that a deed made in 1846, three years after the date of the lost deed, referred to said lost deed; that in 1884 the executor of the grantee in said deed claimed the land conveyed thereby for the estate, and appointed an attorney in fact to recover the land from an adverse claimant and to sell the same; that defendants claim a portion of the land through a deed made by said attorney in fact; that a witness who had lived near the land for many years testified that it was known among the old settlers as the grantee’s land, and the fact that the grantor nor his heirs asserted any title to the land until recently, taken together, were sufficient to establish the genuineness of a lost deed.</p> <p>4. —Absence of Acknowledgment—Ancient Instrument.</p> <p>A lost deed proved to be more than thirty years old, and in the custody of one who represented the owner when last heard of, may be introduced in evidence although not acknowledged or proved up for record.</p> <p>5. —Ancient Instrument—Presumption of Power.</p> <p>The power under which a deed, admissible in evidence as an ancient instrument, was executed, will be presumed.</p> <p>6. —Trial—Evidence—Objection.</p> <p>An objection to evidence, not made at the time of the trial, can not be made the ground of motion for new trial.</p> <p>7. —New Trial—Newly Discovered Evidence—Impeachment of Witness.</p> <p>Where the defendant might have anticipated what evidence the plaintiff would probably introduce, and his sources of information, and used no diligence in investigating such sources of information nor in securing rebutting or impeaching testimony, a new trial is properly refused. A new trial is seldom, if ever, granted on the ground of newly-discovered evidence when its object is to impeach the witnesses of the successful party.</p> <p>8. —Married Woman—Fraud—Estoppel.</p> <p>A married woman having falsely represented by the recitals in a power of attorney that she was a feme sole, and that she and those who joined with her in the execution of said power were the only heirs of a certain ancestor, is es-topped from repudiating the act as against one who acted on such representations. An estoppel by deed is .essentially different from an estoppel in pais.</p>

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

<p>1. —Picked-up Jury.</p> <p>When a party agrees to the setting of a jury case for a time when he must know there would be no regular jury, he can not complain that a “picked-up” jury is empaneled for the trial of the case.</p> <p>2. —Shipment of Cattle—Place of Delivery—Custom.</p> <p>In a suit for damage to a shipment of cattle, where the evidence showed that it was the general custom of the carrier to deliver cattle shipped to Ft. Worth, as the cattle in controversy were, at the Ft. Worth Stockyards, it was not error for the court to charge the jury that it was the duty of the carrier to deliver said cattle at said place.</p> <p>3. —Cold Weather—Act of God.</p> <p>Gold weather in the month of December at Ft. Worth, Texas, is not such an act of God as will excuse a railroad company from liability for damage to cattle in transportation negligently exposed to the weather at said place.</p> <p>4. —Destination—Precise Place.</p> <p>When, by the terms of a shipping contract, freight is to be delivered at a certain city, testimony is admissible of an agreement on the part of the carrier at the time the contract was executed to deliver such freight at a certain place in said pity.</p>

<p>Appeal from the County Court of Denton County.</p>

<p>1. —Public Crossing—Collision—Rule of Company—Evidence.</p> <p>In a suit for personal injuries caused by the collision of a railway train with a street car at a public crossing, a rule of the defendant railway company for the guidance of its employes in the management of trains at public crossings and other hazardous places may be introduced in evidence by a plaintiff, not a servant of said company, together with evidence of a violation of said rule, as a circumstance tending to prove negligence on the part of the train operatives, in that they neglected to observe a reasonable rule adopted by the company to prevent such accidents.</p> <p>2. —Same.</p> <p>In a suit for personal injuries received in a collision between a railway train, and a street car, a rule of the defendant street-car company, made after the accident, for the guidance of its conductors at railroad crossings, is inadmissible.</p> <p>3. —Personal Injuries—Verdict not Excessive.</p> <p>Evidence as to personal injuries considered, and held to warrant a verdict for $7,000.</p> <p>4. —Suit by Next Eriend—Judgment.</p> <p>In a recovery by a next friend for a minor the judgment should be in favor of the next friend for the use of the minor, and require that the money be deposited in court until the minor comes of age or has a guardian.</p>

<p>Appeal from the District Court of Houston County.</p>

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

<p>Contract of Employment—Right to Terminate.</p> <p>In a contract of employment in which the employe agrees that if the employer is dissatisfied with his services he may end the employment at the expiration of any month, the employer may so terminate the contract if dissatisfied, and he is the sole judge of whether he is dissatisfied.</p>

<p>1.—Deed to Married Woman—Separate Property—Burden of Proving.</p> <p>Land acquired by the wife during marriage by deed containing no recital that it is for her separate estate is presumed to be community property, and the burden of proof is on those claiming it as her separate estate to show that fact.</p> <p>2.—Deed as Mortgage—Burden of Proof.</p> <p>When it is sought to show that a deed absolute in form is, in fact, a mortgage, the burden is on him who asserts that fact, and the proof must be clear and satisfactory.</p>

<p>Appeal from Justice Court—Amendment—Jurisdiction.</p> <p>On appeal from a justice to the County Court the plaintiff can not increase his claim by amendment to a sum exceeding two hundred dollars; and it is immaterial that the court did not charge on the items of increased damage and that the judgment was for less than two hundred dollars.</p>

<p>Appeal from the County Court of McLennan County.</p>

<p>Error from, the District Court, of Bell County.</p> <p>Tried below before Hon. John M. Furman.</p>

<p>Appeal from the County Court of Falls County.</p>

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

<p>1. —Destruction of Goods—Liability of Carrier—Prima Facie Case.</p> <p>At common law a common carrier is liable as an insurer of goods intrusted to him for transportation, unless such loss was caused by the act of God, the public enemy, inherent defects in the goods, or negligence on the part of the owner. When it is shown that the goods were delivered to the carrier and were destroyed while in his possession, a prima facie case is made, which can only be rebutted by the carrier’s proving that the destruction of the goods was due to one. of said causes without any negligence of the carrier proximately contributing thereto.</p> <p>2. —Same—Question of Fact—Rebutting Evidence.</p> <p>Whether or not a prima facie case made by the plaintiff is overcome by the rebutting evidence of the carrier, however strong, is a question of fact which can be withheld from the jury only when the evidence in rebuttal is so overwhelming as to leave no room for a reasonable doubt in the mind of every man of ordinary intelligence.</p> <p>3. —Act of God—Delay in. Transportation.</p> <p>It is the rule in this State that the negligent delay of a carrier in the transportation of goods can not be regarded as the proximate cause of an ultimate loss by act of God, although had the goods been transported with reasonable diligence they would not have been lost.</p> <p>4. —Same—Concurring Negligence.</p> <p>While one person will not he liable to another for a loss which the latter would not have sustained had there been no negligence on the part of the former, unless such negligence was the proximate cause of the loss, yet, if the negligence of the former concurs with an accidental cause, resulting in injury to the latter, the negligent person must answer for the consequences as though his negligence were the sole cause of the loss, provided such loss is within the probable consequences of the negligent act.</p> <p>5. —Act of God—Negligence of Carrier—Peremptory Charge.</p> <p>In a suit against a railroad company for the value of goods destroyed by flood while in the possession of the company, the defendant plead act of God, and the plaintiff replied that defendant had ample notice of the approach of the flood, and was negligent in not removing the goods to a place of safety. Evidence considered, and held to require a submission to the jury of the issue of negligence vel non on the part of the defendant company.</p>

<p>Appeal from the District Court of Bexar County.</p>

<p>Negligence—Accident—No Causal Connection—Instructed Verdict.</p> <p>When the undisputed testimony showed that the apron and drawer-bar between the engine and the tender were in a defective condition, but there was no evidence to show any causal connection between the negligence of the defendant in the matter of the apron and drawer-bar and the fall of the deceased from the engine, the court properly instructed a verdict for defendant. Presumptions and inferences will not be indulged 'against evidence.</p>

<p>Deed—Misdescription ot Land—Intention of Parties.</p> <p>The intention of the parties must control in determining what land was, actually bought and sold, and when that intention is clearly shown by the evidence any mistake in the description contained in the deed should be corrected and the deed made to conform to the intention of the parties. Evidence considered, and held to show such a mutual mistake on the part of the grantor and grantee as to preclude the grantee from recovering on the covenant of warranty against his grantor.</p>

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

<p>1. —Error in Submitting Issue—Cured by "Verdict.</p> <p>Where several carriers are sued for damages to a shipment of cattle during transportation and for delay in furnishing cars for said shipment, and under the evidence only the initial carrier could have been liable for the delay in furnishing cars, error in submitting that issue as to all the defendants was rendered harmless by the verdict of the jury in favor of the initial carrier on that issue.</p> <p>2. —Foreign and Domestic Daws—Presumption of Similarity.</p> <p>In the absence of evidence to the contrary it will be presumed that the laws of other States and Territories are the same as our own. Therefore, in a suit in Texas for damages to a shipment of cattle upon a contract executed in New Mexico, it was a question of fact to be submitted to a jury whether or not a provision in said contract, requiring notice of a claim for damages to be filed with the company within ninety-one days after the damage occurred, was a reasonable requirement, such being the law in Texas.</p> <p>"3.—Shipping Contract—Notice of Doss—Decline in Market.</p> <p>The loss sustained by a shipper of cattle by reason of delay in transportation and decline in the price of cattle is not included in a stipulation in the shipping contract for notice in writing of loss or injury to the stock.</p>

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

<p>1. —Trial of the Right of Property—Execution of Contract—Proof.</p> <p>In a suit for the trial of the right of property the court admitted in evidence, without proof of its execution, a contract between the claimant of the property and the purchaser, in which it was stipulated that the title in the property should remain in the claimant until the goods were paid for. Held, error.</p> <p>2. —Deposition—Failure to Answer in Detail.</p> <p>Failure of a witness to answer in detail and specifically a cross interrogatory, the evidence being material, is cause for suppressing the deposition; and this whether or not the witness intended to evade the answer.</p> <p>3. —Deposition—Lost Exhibit—Copy.</p> <p>An original bill of lading attached as an exhibit to a deposition became detached and lost. Held, a copy of such bill of lading was not admissible in evidence without proving its execution or showing that the deposition had been duly substituted.</p>

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

<p>1. —Trial of the Right of Property—Dismissal—Res Adjudicata.</p> <p>In a suit for the trial of the right of property, a judgment was entered quashing the claimant’s oath and bond and dismissing the suit at the claimant’s cost. From this judgment no appeal was taken. After the adjournment of the term the claimant filed another oath and bond, and the plaintiff moved to dismiss the proceeding because the former judgment of dismissal was conclusive of the claimant’s rights. Held, the motion should have been sustained.</p> <p>2. —Same.</p> <p>The finality of the judgment of dismissal was not affected by the fact that the court, at the time it was rendered, reserved the right to set it aside at the next term. This right expired with the term.</p>

<p>Appeal from the District Court of Houston County.</p> <p>Tried below before Hon. Ben]". H. Gardner.</p>

<p>1. —Bailway—Injury to Person on Track.</p> <p>Recovery of damages sustained, in suit by parents for death of boy struck by train while walking on track, under circumstances held to constitute him a licensee rather than a mere trespasser, and to support a finding of negligence by defendant and absence thereof by the injured party.</p> <p>2. —Pleading—Trespasser or licensee.</p> <p>Allegations of customary and long continued use of railway track by the public as a pathway, held sufficient to show one using it to be a licensee and not a trespasser.</p> <p>3. —Railway—Negligence—Speed—Signals.</p> <p>Allegations and proof that defendant railway was negligent toward a licensee walking on its track in running at a high rate of speed and rounding a curve down grade without giving warning signals, held sufficient to warrant the submission of the issue of fact as to whether such omissions were negligence.</p> <p>4. —Death—Damages—Parent.</p> <p>Allegations that plaintiffs, who sued on account of the death of their son, thirteen years old, had a reasonable expectation of pecuniary aid from him after he attained his majority, held sufficient, and the question of such expectation held properly submitted to the jury under the proof offered.</p>

<p>1. —Value—Opinion—Cross-Examination.</p> <p>A witness who has given his opinion of the value of a horse at the destination to which a carrier undertook his transportation, may be cross examined as to the price at which such an animal could be bought elsewhere, and its effect on its market value at place of destination.</p> <p>2. —Pedigree of Animal—Evidence—Certificate of Registration.</p> <p>A certificate of registration of a trotting stallion, though testified to be a document which would be accepted by horsemen of America as authentic registration of the animal’s pedigree, is not admissible in evidence without proof of its execution as at common law.</p> <p>3.—Special or General Damages—Fitness for Breeding Purposes.</p> <p>The pedigree and fitness for breeding purposes generally of animals injured in transportation may be shown in proof of value and damages under the general allegation thereof, depreciation therein not being a special damage which must be alleged as in case of entry for a certain competition or contract for breeding.</p>

<p>1. —Damages—Proximate Result—Infectious Disease.</p> <p>Where a railway company, through an agent diseased with small-pox, sold to plaintiff round.-trip tickets for himself and wife to another State and return, the damages from the disease being communicated to the wife by the husband, who contracted it from the agent, were such as could be contemplated as a natural and probable result for which the defendant would be liable.</p> <p>2. —Same—Customers Kept Away.'</p> <p>Damages by reason of customers being kept away from plaintiff’s place of business through fear of contagion were recoverable as a proximate result of wrongful communication of small-pox to him.</p> <p>3. —Infectious Disease—Agency—Notice.</p> <p>Where the assistant ticket agent of a railway company, after being advised by a physician that he had small-pox, communicated the disease to a passenger by selling him a ticket, the notice to him was notice of his condition to his principal, and the company was liable for the resulting damages.</p> <p>4. —Notice—Evidence—Question of Fact.</p> <p>The testimony of a physician that, to the best of his recollection, though not positive, and though positively contradicted, witness informed the ticket agent of defendant that he had small-pox before he sold tickets communicating the disease to plaintiff, was sufficient to justify the submission of the question of notice to the jury, and the refusal of an instruction withdrawing that issue from them.</p>

<p>Appeal from the District Court of Webb County.</p> <p>Tried below before Hon. J. F. Mull ally.</p>

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

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

<p>1. —Entering Train—General Demurrer—Construction of Pleading.</p> <p>In a suit for personal injuries received while boarding a train, plaintiff alleged that “before he could ascend the steps and enter the car the engineer was signaled to go ahead, and the train started before he was able to get on said car with his valises.” Held, as against a general demurrer, the allegation should be construed to mean that the plaintiff was ascending the steps of the car at the time it started, and not that the car was in motion when he started to get on, and hence contributory negligence, as a matter of law, did not appear from the face of the petition.</p> <p>2. —Same—Contributory Negligence—Evidence.</p> <p>Where it appeared from the testimony that plaintiff had gotten on .the steps of the car before it started, and the sudden moving of the train almost threw him off, and in holding on and regaining his position on the steps he so wrenched and strained himself as to cause the injuries alleged, the court properly refused to instruct a verdict for defendant on the ground that plaintiff was guilty of contributory negligence. Such case is not the same as that of one who attempts to board a moving train.</p> <p>3. —Expert Witness—Cross-Examination.</p> <p>Where a medical expert had testified for plaintiff that, although plaintiff had been ruptured some time before the accident alleged, he had been treated in a certain way by the witness, and had entirely recovered; and a medical expert for defendant had testified that the treatment described would not have cured the plaintiff by the time of the, accident, it was permissible for plaintiff, on cross-examination of defendant’s expert, to show that his opinion was not as likely to be correct as that of the physician who had examined and treated the plaintiff.</p> <p>4. —Charge Not on Weight of Evidence.</p> <p>The court used the following language in its charge: “The plaintiff sues the defendant corporation for alleged injuries he received while attempting to board and enter defendant’s train.” Held, not on the weight of evidence.</p> <p>5. —Duty to Passengers Boarding Train—Charge.</p> <p>Charge upon the duty of railroads to passengers boarding their trains considered, and held not reversible error.</p> <p>6. —Measure of Damages—Charge Approved.</p> <p>In a suit for personal injuries the court charged the jury as follows: “If you find for plaintiff you will find such damages as will reasonably compensate him for injuries received, if any. You will estimate any injuries, if any, thus far sustained, any loss by impairment of capacity to earn wages, any pain or suffering, or mental anguish, if any, and if his injuries are permanent you will find such further damages which, if paid now, will compensate him for any future injuries, if any.” Held, not subject to the objection that it authorized a double recovery.</p> <p>7. —Relation of Passenger and Carrier— Payment of Pare.</p> <p>Where plaintiff alleged that he had purchased a ticket before boarding defendant’s train, or that he intended to pay fare, and did pay the same after boarding the train, it was sufficient to establish the relation of passenger and carrier.</p>

<p>1. —Venue—Abatement.</p> <p>In a suit upon two promissory notes against the maker and several endorsers, evidence considered, and held insufficient to support a plea of personal privilege and of abatement.</p> <p>2. —Note by Corporation—Authority of Secretary.</p> <p>When the undisputed testimony showed that it was customary for the secretary and manager of a corporation, without the express consent of the company, to execute notes in the name of the company in the conduct of its business, and that this custom had never been questioned, and that the notes sued on were executed by the said secretary and .manager for money which the company owed, it was sufficient to support a finding that the notes sued on were executed by authority of the company.</p> <p>3. —Promissory Note—Endorsement in Blank.</p> <p>A negotiable promissory note endorsed in blank is transferable by delivery, and one in possession of such note is presumed to be the owner.</p>

<p>1. —Briefs—Copying Assignments.</p> <p>Where the assignment of errors are not copied into the brief the Appellate Court is not required to consider the questions presented thereby.</p> <p>2. —Same—Absence of Statement of Facts and Bills of Exception.</p> <p>In the absence of a statement of facts and bills of exception the judgment of the trial court must be affirmed if there is no error apparent upon the face of the record.</p>

<p>Error from the County Court of Harris County.</p>

<p>1. —Personal Injuries—Diminished Capacity to Labor—Evidence—Charge.</p> <p>In a suit for personal injuries the court charged the jury, in substance, that they should find for the plaintiff for his loss or injury, if any, from inability or diminished ability to labor and earn money by reason and as a result of the negligence of the defendant. The only evidence of the business or earning capacity of the plaintiff before the injury was that he was a tomato grower or farmer; nothing was shown as to the extent of his business or earnings. Held, there being no evidence from which the jury could ascertain with any degree of certainty the damage, if any, sustained by the plaintiff by reason of his diminished capacity to labor and earn money, that element of damage should not have been submitted to the jury. To enable a jury to determine this fact intelligently there must be some evidence of the nature and extent of the plaintiff’s business or of his earnings before the injury.</p> <p>2. —Same.</p> <p>Houston & T. C. Ry. Co. v. Bird (48 S. W. Rep., 756) followed. Texarkana & Ft. S. Ry. Co. v. Toliver (84 S. W. Rep., 377), and International & Gr. N. Ry. Co. v. Edwards (91 8. W. Rep., 641) distinguished.</p>

<p>Statement of Facts—Absence of File Mark.</p> <p>When a statement of facts bears no file mark of the clerk of the trial court it can not be considered on appeal. A statement of facts prepared by the stenographer and approved by the judge must show that it was also filed within the prescribed time.</p>

<p>Appeal from the District Court of Montague County.</p>

<p>1. —Discovered Peril—Evidence.</p> <p>In a suit for. personal injuries caused by having been struck by a motor car, evidence considered, and held to support a finding that defendant’s motorman was negligent in not using the means at his command to stop the ear after discovering the peril of plaintiff’s wife.</p> <p>2. —Same—Degree of Care.</p> <p>Upon discovery of one in peril on a railroad track it is the duty of the operator to use the greatest precaution to avoid injuring him. The law, as well as the dictates of humanity, imposes upon the operator the duty of using every .means then reasonably within his power, consistent with safety to himself and the passengers, to avoid injuring the person in peril; and such duty demands the prompt rejection of any speculative chance that the person in peril will get off the track in time to avoid injury.</p> <p>3. —Contradicting Witness—Immaterial Matter.</p> <p>Upon cross-examination, the plaintiff having denied making statements to third parties before the filing of the suit, to the effect that Ms ease against the defendant was a “close” case and recovery doubtful, testimony to contradict him as to said statements was properly excluded, because said statements were mere conclusions of the witness and concerning an immaterial matter.</p> <p>4. —Permanent Injury—Future Expenses.</p> <p>In a case where the evidence showed that plaintiff’s injuries were permanent, it was not error for the court to instruct the jury that, if they found for the plaintiff, and that it would be necessary for plaintiff to expend money for medical or surgical treatment in the future, this fact might be considered, together with the other circumstances, in estimating the damages.</p>

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

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

<p>1. —Contract—Time When Essence of.</p> <p>Where, in a suit upon a paving contract, it appeared that the defendant had repeatedly refused to sign said contract until a stipulation was inserted that the work was to be finished within a certain time; that the paving was to be done upon a public street, and the money promised by defendant was in the nature of a donation, time was of the essence of the contract, and a failure to complete the work within the time stipulated forfeited the plaintiff’s right to the money.</p> <p>2. —Same—Quantum Meruit.</p> <p>In a suit strictly upon a contract, and the contract alone, evidence to prove quantum meruit is properly excluded. The paving, being upon a public street, was of no greater benefit to defendant than to other property owners in that vicinity and hence would not support a plea of qumitum meruit.</p>

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

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

<p>1. —Assignment of Error—Sufficiency.</p> <p>An assignment of error which is sufficiently specific to enable the court to see that a particular ruling is complained of should be held good, although it fails to state the reason why the ruling is erroneous; such reasons find their proper place in the propositions, statements and authorities under the assignment.</p> <p>2. —Sequestration—Damages—Charge—Double Recovery.</p> <p>When, in a sequestration suit, the pleading showed that the property seized was the joint or partnership property of the defendant partnership, it was error for the court, by its charge, to authorize a recovery of the entire amount of actual and exemplary damages by one member of the partnership, thereby permitting a double recovery by such member, it appearing that the damage accrued to the partnership and not alone to the individual member.</p> <p>3. —Erroneous Charge—Absence of Statement of Eaots.</p> <p>As a general rule an assignment of error, based upon an error in the charge of the court, will not be considered in the absence of a statement of facts, but it is otherwise when it is apparent that the verdict is not warranted by the pleadings.</p>

<p>Appeal from the District Court of La Salle County.</p>

<p>Sale of Land—Oral Contract—Void.</p> <p>When it appeared from plaintiff’s pleading and evidence that by oral contract, and in consideration of services rendered, he claimed an interest in certain real estate then owned by the defendant, the contract was void under the statute of frauds and the court properly instructed a verdict for the defendant.</p>

<p>1. —Removal of Causes—Statute Construed.</p> <p>A suit against a railroad company for personal injuries caused by the failure of the railway company to properly equip its trains with automatic ■couplers, does not necessarily import a reliance upon the Act of Congress of March 3, 1875, requiring railway companies to equip their cars with automatic couplers. A failure so to do may constitute negligence under the general principles of law concerning master and servant, and therefore such a suit does not necessarily arise under the Constitution or laws of the United States, and for that reason be removable to the Federal Court.</p> <p>2. —Same.</p> <p>The Act of March 3, 1875 (U. S. Compiled Statutes, vol. 3, p. 3174), requiring railway companies to properly equip their ears with automatic couplers, applies only to common carriers engaged in interstate commerce, and a petition for removal of a suit from a State to a Federal Court on the ground that the suit is based upon said statute, should affirmatively show that fact.</p> <p>3. —Railroad Corporation.—Venue—Residence.</p> <p>Under the Act of the 27th Legislature, chapter 27, page 31, 'requiring all suits against railroad corporations for personal injuries to be brought in the county in which the injury occurred or in the county of plaintiff’s residence at the time of the injury, a charge which defined residence as “a fixed and permanent abode or dwelling place for the time being, as contradistinguished from a temporary locality of existence,” approved.</p> <p>4. —Master and Servant—Safe Place and Appliance.</p> <p>Where a switchman, while endeavoring to make a coupling, was injured by the combined effects-of a slippery track (the risk of which he assumed) and a defective coupler (the risk of which he did not assume) the court properly charged the jury, in effect, that the fact that plaintiff assumed the risk of the defective track would not relieve defendant from liability for the defective coupling. i</p>

<p>1.—Unrecorded Deed—Judgment Creditor—Execution Sale.</p> <p>A judgment creditor and purchaser thereunder takes superior title to real estate as against a vendee holding under an unrecorded deed even though no part of the money hid at such sale is actually paid, except the cost, and even though the attorney of the creditor had actual notice on the day of sale of the unrecorded deed, but neither the creditor nor the said attorney had such notice at the time the property was levied on.</p> <p>3.—Same—Separate Tracts—Possession of One Tract as Notice.</p> <p>Where several tracts of land are conveyed by tire same deed, the possession by the vendee of one of such tracts, is not notice of his claim to the other tracts, his deed being unrecorded.</p>

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

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

<p>Justice Court—Reconvention—Jurisdiction.</p> <p>In a suit in the Justice Court upon three promissory notes for $25 each given in part payment for a piano the defendant plead in reconvention for rescission of the contract and for recovery of the money and property paid, aggregating $270. Held, that neither the Justice Court nor the County Court on appeal had jurisdiction of defendant’s plea in reconvention.</p>

<p>Appeal from the District Court of Llano County.</p>

<p>1. —City—Ordinance—Impounding Stock—Constitution.</p> <p>The constitutional provision authorizing counties or subdivisions thereof to prohibit, by popular vote, cattle from running at large (Canst., art. 16, sec. 23) does not prevent the council of an incorporated city from enacting a similar prohibition by ordinance not submitted to such vote.</p> <p>2. —Same—Impounding Fees—Exempt Property.</p> <p>Live stock exempt by law from execution may be made liable for impounding fees imposed by a city ordinance when taken running at large within the city limits.</p>

<p>Appeal from the County Court of Bastrop County.</p>

<p>Appeal from the District Court of Bastrop County.</p>

<p>1. —Insurance—Inventory—Case ¡Followed.</p> <p>The ruling of this court, as to the insufficiency of the inventory herein to comply with the requirement of the insurance policy as to keeping same, made in Delaware Ins. Co. v. Monger' & Henry, 74 S. W. Rep., 792, upon the same facts here involved, is followed and approved.</p> <p>2. —Insurance—Contract—Keeping ¡Books.</p> <p>The ruling of the Supreme Court in Monger & Henry v. Delaware Ins. Co., 97“ Texas, 362, that an undertaking by insured to keep a set of books presenting a complete record of purchases, sales and shipments, is not met by the mere preservation of detached slips taken from a cash register is followed in case involving the same facts.</p> <p>3. —Same—Books—Expert Evidence.</p> <p>The opinion of a bookkeeper was not receivable to show that the preservation of mere detached slips from a cash register constituted such a keeping of “books” as was customary and would be a compliance with a warranty that books should be kept.</p>

<p>1. —Personal Injury—Negligence of Master.</p> <p>In a suit by a railroad employe for injuries received while moving a heavy rail, alleged to have been caused by the want of sufficient assistance, evidence considered, and held to support a finding by the jury that the master was negligent in not furnishing more men to handle the rail.</p> <p>2. —Same—Bellow Servant—Assumed Bisk—Evidence.</p> <p>Where it appeared from the evidence that there was no negligence on the part of plaintiff’s fellow servants, that plaintiff was not accustomed to or skilled in the work required of him, and that the danger to such a person resulted from the insufficient assistance furnished by the master, the court properly refused to instruct a verdict for the defendant.</p> <p>3. —Physical Infirmity—Contributory Negligence.</p> <p>When an employe who is suffering from a physical infirmity which is liable to be aggravated by the work assigned him, undertakes such work without giving his employer notice of his condition, he is guilty of contributory negligence.</p> <p>4. —Assumed Bisk—Intelligence—Charge.</p> <p>Where, in a suit for personal injuries, the evidence did not show that plaintiff was lacking in ordinary intelligence, a charge on the issue of assumed risk that the plaintiff was entitled to recover unless he knew or in the discharge of his duties must necessarily have known the risk and attendant danger, was not reversible error because it made the intelligence of the plaintiff, instead of that of a man of ordinary intelligence, the standard.</p> <p>5.—Personal Injuries—Pleading.</p> <p>In a suit for personal injuries caused by lifting a heavy railroad iron, pleading considered, and held, sufficiently specific as to the negligence of the defendant and the manner of the injury.</p>

<p>1. —Sickness or Health—Testimony—Opinion of Nonexpert.</p> <p>The opinions of nonprofessional men upon questions of health and sickness are admissible in evidence, and even as to questions involving scientific knowledge such evidence is admissible if the witness gives the facts upon which his opinion is based.</p> <p>2. —Brief—Insufficient Statement.</p> <p>When appellant’s brief does not contain a sufficient “statement” to enable the Appellate Court to pass upon an assignment of error, the assignment can not be considered.</p> <p>3. —Improper Argument.</p> <p>Even though the plaintiff was a girl, and one who worked for wages, it was reprehensible in her counsel to speak of her before the jury as “a penniless girl,” and thus seek to warp their judgment by sympathy.</p> <p>4. —Master and Servant—Concurring Negligence.</p> <p>If the negligence of a master concurs with that of his servant in inflicting an injury upon another servant the master is as liable for the consequences as though his act of negligence were the sole cause of the injury, and this, though the injury may not have occurred but for the negligence of the servant.</p> <p>5. —Bellow Servant—Pleading—Charge.</p> <p>Where, in a suit for personal injuries, the defendant pleads negligence of a fellow servant, the court in submitting the issue to the jury, should confine them to the very servant and very acts of negligence of such servant pleaded by the defendant.</p> <p>6. —Same—Evidence.</p> <p>In a suit by an employe for personal injuries caused by the falling of a barrel from a loft overhead evidence considered, and held to show no negligence on the part of a coemploye, and therefore not to require a charge on that issue.</p> <p>7. —Employes—Safe Place to Work,</p> <p>The duty of an employer to exercise ordinary care to provide a reasonably safe place for his employes to work is personal to the employer, continuous and nondelegable.</p> <p>8. —Assumed Bisk.</p> <p>In a suit by an employe for personal injuries caused by the falling of a barrel from overhead while she was engaged in her work below, and who was unfamiliar with the manner in which the barrels were stored, and whose duty did not require her to inspect or to familiarize herself with the situation of the barrels, such employe had the right to rely on the assumption that her employer had discharged his duty to his employes in providing a safe place for them to work, and, although she had worked there some time, she did not assume the risk of injury from the falling barrel.</p>