Volume 45 — Texas Civil Appeals Reports

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

<p>1. —Mandamus—Expiration of Term of Office.</p> <p>Questioned whether a court should entertain jurisdiction of a suit for mandamus to compel an officer to do an official act, after the officer’s term of office had expired.</p> <p>2. —Justice of the Peace—New Trial—Statute Construed.</p> <p>While, under a literal construction of article 1652, Revised Statutes, a justice of the peace might be empowered to grant a new trial at any time within ten days after the rendition of the judgment, even though the term of his court had expired, still, under and in view of other provisions of the stat-r utes, it must be held that such power is limited to the term of the court at which the judgment was rendered.</p>

<p>1. —Trespass to Try Title—Pleading—Landlord and Tenant.</p> <p>Under the ordinary form of trespass to try title the' plaintiff may prove that the defendant entered and held possession of the land in controversy as his tenant.</p> <p>2. —Tenancy—Limitation—Evidence.</p> <p>In a suit of trespass to try title, wherein the defendant asserted title to the land in controversy by limitation, evidence considered, and held sufficient to support a finding by the jury that the defendant entered upon the land as plaintiff’s tenant.</p> <p>3. —Trespass to Try Title—Landlord and Tenant.</p> <p>A tenant can not dispute his landlord’s title, and in trespass to try title a tenant will not be allowed to show as a defense that his landlord had no title.</p>

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

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

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

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

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

<p>Limitation—Fraud and Mistake—Diligence.</p> <p>Pleading considered, in an action to recover back money alleged to be paid through mistake or by fraud of defendant, and held to show no excuse for not sooner discovering the fraud or mistake, the facts being ascertainable from judgments on record, and therefore the action to be barred by limitation.</p>

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

Tried below before Hon. George Calhoun. A recovery by plaintiff upon a former trial, after affirmance on appeal (86 S. W. Rep., 735), was reversed by the Supreme Court (99 Texas, 349). Anglin, Jr., was injured by collision of an engine with a covered laundry wagon which he was driving on a public street in Austin. The railway track at that point runs east and west along Third Street.

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

<p>Minor—Custody and Control—Hateas Corpus.</p> <p>On habeas corpus brought by a father to obtain the custody and control of a minor in charge of grandparents, the interest of the child is the paramount consideration, and a general allegation of relator’s unfitness for its custody, in the answer of respondents, is sufficient to admit testimony and form the basis of a decree.</p>

<p>1. —Contract to Furnish Cars—Evidence.</p> <p>Where a railroad station agent, in reply to a notice or statement by a shipper that he wanted a certain number of cars on a certain day in which to ship cattle, answered “all right,” it constituted a contract to furnish the cars wanted at the time named.</p> <p>2. —Same—Authority of Agent.</p> <p>The local agent of a railroad company having authority to contract for the shipment of cattle has authority also to contract that the cars shall be furnished on a certain day. This authority in such agents is absolutely necessary to the proper discharge of their duties to the public.</p> <p>3. —Same—Same.</p> <p>The fact that a shipper knew at the time the agent agreed to furnish cars on a certain day, that he, the shipper, would be required later, and before the shipment went out, to sign a contract which would probably contain a denial of the agent’s authority to contract to furnish cars at any specified time, would not, as matter of law, destroy the oral contract to furnish the cars at the time specified.</p> <p>4. —Impeaching Written Contract—Pleading."</p> <p>In the absence of allegations of fraud, accident or mistake in the execution of a shipping contract it was error to admit testimony which tended to impeach said contract.</p> <p>5. —Shipment of Cattle—Damages—Pleading and Evidence.</p> <p>Where, in a suit for damages to a shipment of cattle, plaintiff claimed only such damages as accrued before the cattle were loaded, it was error to admit evidence of injuries in transit.</p>

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

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

<p>1. —Right of Partition—Minor—Discretion of Court.</p> <p>The joint owner of property has an absolute right to have his interest therein segregated from that of his co-owner. The court has no discretion in the matter, and the fact that one of the joint owners is a minor, and in the opinion of the court a partition of the property would be prejudicial to the interests of such minor, is immaterial.</p> <p>2. —Same—Suit by Next Eriend.</p> <p>Any'minor who has a cause of action and has no legal guardian can bring suit by next friend, and such next friend shall have the same rights concerning the suit and the matter involved as if he were the legally appointed guardian.</p> <p>3. —Business Homestead—Abandonment. ■.</p> <p>When a business homestead ceases to be used as a place of business by the head of a family it loses its homestead character and is subject to partition.</p>

<p>1.—Suit for Office—Jurisdiction.</p> <p>An office of profit is property, and may be sued for as any other property, and the alleged value of the office determines the jurisdiction of the court.</p> <p>2.—Same.</p> <p>Where in a suit for an office and its fees it was alleged that the value of the office was $400 the District Court had no jurisdiction of the suit.</p>

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

<p>Carriers of Live Stock—Muddy Pens.</p> <p>There being no statutory provision prescribing any particular character of pens to be provided by railroad cohapanies for the reception of such live stock as might be tendered for shipment, it can not be said as matter of law that the fact that the pens furnished are muddy, is negligence. Carriers are not liable for injury caused by unprecedented climatic conditions. Whether or not the furnishing of muddy pens in a particular case is negligence is a question of fact for the jury.</p>

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

<p>Practice—Absence of Statement of Facts.</p> <p>When, for any reason, there is no statement of facts in the record, assignments of error relating to the pleadings, admission of testimony and the giving and refusing charges can not be considered on appeal.</p>

<p>1. —Leased Premises—Damage by Fire—Evidence.</p> <p>In a suit for the rent of leased premises where the contract of lease provided that if the premises should be so damaged by fire as to be unfit for occupancy the lease should terminate, and the issue on the trial was the extent of the damage, evidence as to the amount of damages claimed by the landlord and paid by the insurance companies was admissible.</p> <p>2. —Expert Testimony—Direction of Court.</p> <p>Testimony of expert witnesses as to whether or not a building recently damaged by fire was suitable for storing dry goods, considered, and held admissible. The admission of expert testimony is always for the determination of the trial court, and the action of the court will not be reviewed unless gross abuse of its discretion is made to appear.</p> <p>3. —Rebutting Testimony.</p> <p>For the purpose of showing that the walls of the leased building had been weakened by fire the defendants proved that after the fire one of the walls had been anchored; the plaintiffs should have been allowed to prove in rebuttal of this idea that the anchoring of unsupported walls was in accordance with the rules of good building, and that the wall was anchored without regard to the effect of the fire.</p> <p>4. —Improper Remarks of Counsel—Reference to Former Trial.</p> <p>While it was improper for counsel for defendant to refer in the hearing of the jury to the action of the jury upon a former trial, under the facts and circumstances of this case such conduct was not sufficient cause for new trial or reversal.</p>

<p>1. —Brief—Statement—Bill of Exceptions.</p> <p>The nature of the evidence, the exclusion of which is assigned as error, should be shown by the statement in appellant’s brief. The court is not required to learn it from the hill of exceptions in the record.</p> <p>2. —Assignment—Bindings of Bact—Sufficiency of Evidence.</p> <p>Assignments of error in that the facts found by the judge do not -support his conclusions based thereon do not raise the question of the sufficiency of the evidence to sustain the findings of fact.</p>

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

<p>1. —Telegraph—Pleading—Negligence.</p> <p>A general allegation of negligent delay in the transmission and delivery of a telegram held to raise the issue of such default by defendant at any part of the line, whether the office receiving it for transmission was controlled by defendant or by another.</p> <p>2. —Telegraph—Rush Message—Contract.</p> <p>Pleading held sufficient to charge an agreement by defendant to “rush” a message received for transmission.</p> <p>3. —Rush Message—Office Hours.</p> <p>A contract to “rush” the delivery of a telegram was within the apparent authority of the agent receiving it, and the agreement was not affected by defendant’s regulations as to office hours at the terminal station of which the sender had no notice.</p> <p>4. —Telegram—Right of Action—Party to be Benefited.</p> <p>The one for whose benefit a telegram was sent may maintain action for damages by delay in transmission and delivery, whether the sender was his agent or not.</p> <p>5. —Rush Message—Diligence.</p> <p>Evidence held to support an undertaking for special diligence to accomplish prompt transmission and delivery of a telegram and failure to use such diligence.</p> <p>6. —Claim of Damages—Notice—Suit.</p> <p>A contract making notice of claim within ninety days a condition of recovering damages for default in transmission or delivery of a telegram is met by suit brought within that time.</p> <p>7. —Contributory Negligence—Postponement of Funeral.</p> <p>That damages claimed by plaintiff for delay of telegram preventing his presence at a funeral might have been obviated by a telegram from him asking its postponement was matter necessary to be alleged and proved in defense.</p> <p>8. —Rule—Office Hours—Evidence.</p> <p>Evidence that the work of an agent of both the railway and telegraph companies at a small station was very light was admissible as bearing on the reasonableness of a rule of the latter company as to office hours.</p> <p>9. —Charge—Omission—Request.</p> <p>Appellant should have requested more specific instructions to entitle him to complain of a charge not full nor positively erroneous.</p> <p>10. —Charge—Ignoring Issue.</p> <p>A requested charge is properly refused where it ignores an issue of fact which would alter the conclusion to be drawn from the facts on which it is based.</p> <p>11. —Telegram—Diligence—Press of Business.</p> <p>A requested charge was erroneous in excusing. a telegraph company for delay in transmission of a message if its wires were occupied with other business, without regard to the relative importance of the business.</p> <p>12. —Charge.</p> <p>There was no error in refusing requested instructions on subjects fully and properly covered by the court’s charge.</p> <p>13. —Telegraph—Delay.</p> <p>Evidence held to support a recovery of damages for delay in transmission and delivery of a telegram, whereby plaintiff was prevented from attendance at the funeral of a relative.</p>

<p>1. —Sale—Fraud—Revocation—Purchaser.</p> <p>Where the sale of property was induced by fraudulent representations the vendor may revoke and reclaim the property; a purchaser from the first vendee who took it for a debt and with notice of the fraud can not avoid such claim though he was a bona fide creditor and the property taken by him was not in excess of his debt.</p> <p>2. —Same—Pleading.</p> <p>Pleading considered and held to state a good cause of action for revocation of a sale and recovery back by the vendor of the property sold, because of fraud by the purchaser.</p> <p>3. —Limitation—Amendment—New Cause.</p> <p>The original petition being a suit to recover back property sold on the ground that the sale had been procured by fraud, an amendment presenting a cause of action of the same nature, however much elaborated, was not a new cause of action against which limitation ran after the filing of the original petition.</p> <p>4. —Sale—Rescission—Parties.</p> <p>To an action to recover from a second vendee property the first vendee had obtained by fraud the latter is not a necessary party. No decree of rescission is necessary.</p>

<p>1. —Improper Testimony—Harmless.</p> <p>Where testimony taken by itself might be objectionable, the party complaining of its admission must make it appear by the statement in his brief that there was no other testimony in the case to the same effect, in order to show that he was probably injured thereby. ,</p> <p>2. —Charge—Harmless Omission.</p> <p>A special charge given at the instance of one defendant which instructs a verdict for such defendant on a given state of facts, can not be complained of by a codefendant on the ground that said charge should have instructed a verdict for both defendants when the verdict was against both defendants.</p> <p>3. —Joint Negligence—Joint Liability—Contribution.</p> <p>Where a railroad company constructed its tracks upon the premises of a smelting company with the permission and for the benefit of said smelting company, and the smelting company afterwards constructed a blast pipe so close and low over the tracks of the railroad company as to be dangerous to the employes of the railroad company, the smelting company was not merely a constructive or passive, but an active wrongdoer, and was liable for a re-suiting injury, even though the railroad company was also negligent in not warning its employes of the dangerous position of the pipe. In such case no right of contribution exists between the two defendants.</p> <p>4. —Negligence—Question of Fact.</p> <p>Whether or not plaintiff was guilty of negligence by sitting on the brake-wheel with his back to the engine at the time he was injured was a question of fact for the jury • to determine under all the facts and circumstances.</p> <p>5. —Pleading—Evidence—Immaterial Variance.</p> <p>Plaintiff alleged in his petition that he was releasing a brake, in the discharge of his duties, at the time he was knocked off and injured. There was testimony that he was sitting on the brake when knocked off. The variance was immaterial. It was only necessary for him to prove the substance of the issue—that he was there in the discharge of his duties.</p> <p>6. —Use of Premises—Care by Owner.</p> <p>Where one is rightfully upon the premises of another "it is the duty of the owner to abstain from doing anything which ordinary care would forbid as likely to injure the person so using the premises.</p> <p>7. —Argument of Counsel—Admission of Nonliability—Rights of Parties.</p> <p>Counsel for plaintiff said in his argument to the jury that he did not think appellant was liable in this suit. Appellant’s codefendant objected, and asked to have the remark excluded, to which appellant objected, and the court instructed the jury not to consider the remark. Held, the remark was not evidence and the appellant acquired no right thereby to be dismissed from the suit. It was the duty of the court under the circumstances to submit the correctly as to both defendants.</p> <p>8.—Costs.</p> <p>A question of costs not raised in the trial court can not be raised for the first time on appeal.</p>

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

<p>Physical and Mental Suffering—Christian Science.</p> <p>In a suit against a railroad company for mental and physical suffering caused the plaintiff by expulsion from one of its passenger trains, it was error to refuse to allow the defendant on cross-examination of the plaintiff to prove that she was a Christian Scientist, and that she had, or thought she had, such control of her feelings as to render her insensible to pain when she willed to be.</p>

<p>1. —Limitation—Married Women—Act of 1895 Construed—Nonresidents.</p> <p>The Act of the Legislature of 1895, concerning limitation against married women, was not retroactive, and limitation against married women did not begin to run until one year after the law went into effect. Limitation will not run in favor of nonresidents or absentees from the State during their absence even though such absentee had tenants in possession of the land and paid all taxes thereon.</p> <p>2. —Same.</p> <p>The Act of the 24th Legislature, general laws 1895, p. 230, was approved on April 1, 1895, but did not take effect until July 30, 1895.</p> <p>3. —Limitation—Color of Title—Three Years.</p> <p>Land was patented to the “heirs of G.” At the time of G.’s death he left surviving him his mother and father and four brothers and sisters; the mother and father were the heirs of G.; upon the death of the mother and father the title vested in the four brothers and sisters; the defendants acquired the title of three of the brothers and sisters but failed to connect themselves in any way with the title of the fourth. Held, that defendants had neither title nor color of title to said fourth interest, and hence the three years’ statute of limitation did not apply.</p> <p>4. —Undisputed Evidence—Charge.</p> <p>Where the evidence upon an issue is undisputed the court -might instruct the jury peremptorily upon the issue.</p> <p>5. —Incomplete Verdict—Judgment.</p> <p>It appeared from the undisputed evidence that a third person, not made a party defendant in the suit, owned a life estate in the land in controversy the defendants did not claim said life estate in their pleadings; the evidence showed that said life estate was lost by limitation; the court instructed the jury as to said life estate to find for defendants, but the jury made no finding as to the same; the court entered judgment in favor of defendants for said estate. Held, the court had power to enter such judgment on the verdict.</p> <p>6. —Assignment of Error—Party not Appealing.</p> <p>The refusal of the court to give a charge requested by a party who has not appealed will not be reviewed.</p> <p>7. —Codefendants—Pleading inter sese—Service Waived.</p> <p>In a suit against several defendants for an undivided interest in land some of the defendants answered that they held under one of their codefendants by deed with covenant of general warranty, and also that their said codefendant still owned a sufficient quantity of the land in controversy to satisfy the claim of the plaintiff, and prayed that in the event the plaintiff recovered that her interest be taken out of the land■ still owned by said codefendant vendor; said codefendant filed no demurrer or exception to the pleas of her vendees and made no objection on the trial to the evidence introduced by them to prove the allegations of said pleas. Held, that such codefendant will not afterwards be heard to complain that she was not served with notice of the pleadings of her vendees.</p> <p>8. —Deed by Cotenant—Specific Part.</p> <p>The deed of a cotenant conveying a specific part of the joint property is not void, and a court of equity will set apart to the grantee the particular tract conveyed if it can be done without prejudice to the other cotenants.</p>

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

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

<p>1.—Locomotive Whistle—Frightened Horse—Personal Injuries.</p> <p>In an action for personal injuries resulting from the fright of a horse caused by a locomotive, the liability of the railroad company depends upon three conditions. First, the presence of the horse must have been known to the engineer; second, the probability of causing fright to the horse, and consequent disaster, must have been apparent to a person of ordinary prudence, situated as was the engineer; and third, the noise causing the fright must have been due to causes under the engineer’s control and must have resulted from the failure on his part to use ordinary care to prevent them.</p> <p>2.—Same—liability—Issue of Fact.</p> <p>In a case where plaintiff’s horse was frightened by the blowing of a locomotive whistle and plaintiff was injured, evidence considered, and held to raise an issue of fact as to the negligence of defendant which should have been submitted to the jury.</p>

<p>1. —Note—Surety Liable for Part Only—Parties.</p> <p>Where the sureties on a note are each by agreement liable for only a part or certain proportion of the entire debt suit may be maintained against each separately without joining the others. The liability of each surety is independent of that of the others.</p> <p>2. —Same—Stipulation for Attorney’s Pee.</p> <p>In enforcing a contract for indemnity the plaintiff must allege and prove the extent to which he has been damnified; a stipulation in a note for payment of ten percent attorney’s fees is a contract of indemnity and in a suit upon such a note the plaintiff must allege and prove that he has either paid or contracted to pay said fees.</p> <p>3. —Same—Same.</p> <p>In a suit on a note stipulating for ten percent attorney’s fee if placed in the hands of an attorney for collection, and the petition simply alleges that the plaintiff had placed the note in the hands of an attorney for collection, the petition is subject to special exception on the ground that it failed to allege either that plaintiff had paid or contracted to pay to his attorney the sum stipulated in the note, or that the sum claimed was a reasonable compensation for the services performed.</p> <p>4. —Tender.</p> <p>To secure the benefit of a tender a debtor must tender the full amount for which he is liable, and that before suit is filed. The fact that the creditor makes an excessive demand is immaterial; the debtor must determine for himself the correct amount due and tender that sum.</p> <p>5. —Deed of Trust—Commission to Trustee.</p> <p>The distinction between a stipulation in a note that a certain percent of the amount due shall be added as attorney’s fee, and a stipulation in a deed of trust that a certain percent of the sum brought by the property at the sale shall be paid to the trustee as his commission, is that in the ease of the attorney he is not a party to the contract of indemnity and it is not contemplated that the holder of the note shall benefit by the contract; in the case of the trustee he accepts the trust for a fixed compensation and may therefore enforce its terms.</p>

<p>1. —Discovered Peril—Public Highway—Frightened Horse.</p> <p>Plaintiff’s wife was driving along a public road on defendant’s right of way within 15 to 25 feet of the railroad track and parallel thereto when her horse became frightened at a train approaching from behind, and ran away, throwing out the occupants of the buggy and injuring plaintiff’s wife. Held, the doctrine of discovered peril would apply, and it was the duty of defendant’s employes when the peril became apparent not only to exercise ordinary care, hut to do everything consistent with the safety of their train to stop the train or decrease its speed, and thus avoid increasing the fright of the horse.</p> <p>2. —Same—Degrees of Care—Charges.</p> <p>Where it appears that two charges were requested by the plaintiff, in one of which the jury are instructed that it was the duty of the defendant, under the circumstances in evidence, to use the highest degree of care and in the other, to use only ordinary care, the first of which was refused and the other given, it will be presumed that the charge prescribing the more lenient rule was not requested until the other had been refused, and the plaintiff will not be held responsible for. the error of the court in giving the more lenient rule, although he requested the same when the more stringent one was proper.</p> <p>3. —Traveler on Highway—Duty of Railroads—Case Criticised.</p> <p>It is the duty of those operating railroad trains to keep a lookout for the safety of persons traveling adjacent highways, and a failure to exercise ordinary care in this respect would render the company liable for proximately re-suiting injury. Missouri, K. & T. Ry. Co. v. Bellew, 62 S. W. Rep., 99, criticised.</p> <p>4. —Discovered Peril—Contributory Negligence.</p> <p>The duty to use the highest degree of care to avoid injury in case of discovered peril only arises upon actual knowledge of the peril, and not upon such knowledge as might have been had by the exercise of proper care. In a case of negligent injury after discovered peril contributory negligence is no defense.</p> <p>5. —Public Road on Right of Way.</p> <p>Where a railroad company permits its right of way to be used as a public road for a number of years, and persons traveling thereon are injured by the negligence of the company, it can not defend on the ground that the persons so injured were trespassers.</p> <p>6. —Failure to Ring Bell or Blow Whistle—Negligence per se.</p> <p>The duty on the part of railroad companies to ring the bell or blow the whistle when approaching a public crossing is prescribed by statute, and a failure to observe this duty is negligence per se in case of accident.</p> <p>7. —Theories of Defense and liability—Charge.</p> <p>It is error for the court in submitting certain theories of the evidence on which the defendant would not be liable to ignore other theories on which the defendant would be liable, notwithstanding the finding of the jury for the defendant on the theories submitted.</p> <p>8. —Use of Senses—Charge.</p> <p>Upon an issue of contributory negligence, in a suit for personal injuries, it was error for the court to charge the jury that it was the duty of the injured person to use her senses in ascertaining the approach of the train which caused her injuries. A charge should be so worded and framed that an ordinary jury would not probably misconstrue it.</p> <p>9. —Unsafe Horse—Contributory Negligence.</p> <p>In a suit for personal injuries caused by a horse becoming frightened at an approaching train, on the issue of contributory negligence it was proper to admit testimony tending to show that the horse driven by the injured person near defendant’s railroad on the occasion in question was afraid of railroad trains, and the injured person knew it.</p> <p>10. —Charge—Repetition of Issue.</p> <p>It is improper for the court in its charge to repeat an issue so often as to give the same undue prominence.</p> <p>11. —lengthy Briefs—Rule 35.</p> <p>The growing disposition to extend briefs beyond reasonable limits by unnecessary multiplicity and repetition of assignments and propositions, is deprecated, and attention is called to rule 35 for preparation of cases on appeal.</p>

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

<p>1.—Homestead.—Family—Brother and Sister.</p> <p>A brother and sister living together on premises owned by them in common may constitute a family such as will support a claim of homestead rights therein, where the evidence shows a moral obligation of the one to support and a corresponding state of dependence by the other.</p> <p>2.—Homestead—Abandonment—Houses for Bent.</p> <p>A homestead once so established as to embrace an entire block is not necessarily abandoned as to certain lots therein by the erection and renting of houses upon them. Evidence as to temporary intent in such erection- and renting, as to the relations of the tenants by service to the family, and partial use of the premises by the family while rented, held to support a finding against the theory that homestead was abandoned.</p>

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

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

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

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

<p>1. —Garnishment—Pledgee—Liability.</p> <p>Where a garnishee has in his possession property of a debtor pledged with the garnishee by the debtor to secure the faithful performance of a contract existing between the garnishee and the debtor, and the garnishee unlawfully and without just cause declares the contract terminated and the pledged property forfeited to himself, the garnishing creditor has the same rights against the garnishee as the debtor would have and is entitled to judgment for the value of the pledged property appropriated by the garnishee.</p> <p>2. —Briefs Should be Brief.</p> <p>The growing evil of preparing lengthy briefs condemned. Briefs are intended not only to aid the Appellate Court in reaching a correct decision, but also to enable the court to dispose of the cause with the least labor and consumption of time.</p>

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

<p>1. —Principal and Agent—Ratification.</p> <p>Where a salesman sold goods upon terms and conditions contrary to the terms and conditions printed upon the order blank, in a suit by the principal against the purchaser to enforce the printed terms of the order blank, testimony of the salesman offered by the defendant to the effect that he had notified his house of the terms on which the goods had been sold, and that they had ratified the same, should have been admitted, the defendant having plead ratification.</p> <p>2. —Same—Evidence.</p> <p>The issue being whether or not a principal knew of and ratified the terms upon which its agent had sold certain goods, the correspondence between the principal and agent which tended to show knowledge and ratification was pertinent and competent.</p> <p>3. —Printed Contract—Change—Evidence.</p> <p>In a suit for the purchase price of goods in accordance with the terms of a printed order blank, the defendant having plead non est factum and a different contract, evidence offered by the defendant which tended to show why a deviation from the usual terms of sale was made in his case, was admissible. And so with regard to prior sales on the same terms contended for by defendant.</p> <p>4. —Interrogatory—Answer not Responsive.</p> <p>Where a witness in answer to a cross-interrogatory as to that fact alone admitted that he had written certain specified letters, his explanation as to what said letters meant should have been excluded because not responsive to the interrogatory.</p>

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

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

<p>1. —Property Damaged for Public Use.</p> <p>Where one’s property is damaged for a public use, as by the construction of a spur track of a railway near thereto, it is not necessary, in order to entitle the owner to recover, that the damage be negligently inflicted.</p> <p>2. —Same—Railway on Adjoining. Property.</p> <p>A landowner whose property is injured by the construction and operating of a railway is entitled to damages though the railway be not upon his land nor any of his property be taken.'</p> <p>3. —Same—Damages—Temporary or Permanent.</p> <p>In the absence of evidence that a spur track of a railway on land adjoining plaintiff’s property was intended only as a temporary expedient it should be treated as permanent in estimating damages.</p> <p>4. —Charge—Requested Instruction.</p> <p>A charge which otherwise might have permitted consideration of elements of damage alleged but not proved, was cured by giving a requested instruction ■excluding them from consideration.</p> <p>5. —Damaging Property—Public Use—Private Switch.</p> <p>Where plaintiff’s real property was depreciated in value by the construction of the spur track of a railway to private warehouses on an adjoining lot he could recover therefor.</p> <p>6. —Argument of Counsel.</p> <p>Remarks of an attorney based on excluded testimony can not be considered to have prejudiced his opponent where, on objection being made, he stated that he had not understood that it was excluded, and would refrain from discussing it.</p>

3.—Error—Findings of Fact. Errors in the findings of fact are not cause for reversal unless they control the result reached. Error from the District Court of Travis County. Tried below before Hon. V. L. Brooks.

<p>1. —Cotton. Futures—Gaining Contract.</p> <p>A contract concerning the price of cotton sold and delivered in October, which fixed it at the market price of “May futures” on a date to be named by the seller at any time between the sale and the twentieth of the next April, adopted, it seems, a lawful means of fixing the price. But if the actual contract was that the purchaser should buy and carry for the seller a like amount of “May futures” and close them out at the latter’s option, within such dates, the loss or gain from that transaction to be deducted from or added to the money advanced on the actual cotton bought and sold, the consideration was in part an illegal gaming transaction, and there could be no recovery, on such contract, of the loss upon the deal in futures.</p> <p>2. —Same.</p> <p>The rule that a party can recover if he establishes a cause of action without resorting to an illegal undertaking to establish it does not apply to the ease where defendant proves the consideration to be in part illegal, and he is not estopped from making such defense.</p> <p>3. —Written Instrument—Parol Evidence.</p> <p>The rule prohibiting the introduction of parol evidence to vary a written instrument does not prevent the party sued thereon from showing that the consideration was other than that recited and was illegal.</p>

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

<p>1. —Personal Injuries—Derailment—Pleading.</p> <p>In a suit for personal injuries received in a derailment an allegation that plaintiff was a passenger on the train and that the train was derailed, was a sufficient allegation of negligence on the part of defendant. In such case a plaintiff is not required to allege or prove the cause of the derailment. The law presumes negligence.</p> <p>2. —Same—Amount of Verdict.</p> <p>Where the plaintiff was 45 years of age, earning $50 per month at the time of his injury, had three ribs broken, lost greatly in flesh, had a cough, suffered from rapid heart and was incapacitated to do ordinary labor, a verdict for $3,000 did not evidence passion or prejudice on the part of the jury.</p> <p>3. —Mental Suffering.</p> <p>Mental suffering may be inferred from physical injuries.</p>

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

<p>1. —Alighting Passenger—Duty of Carrier.</p> <p>When a carrier permits the platform and steps of its cars to become muddy and slippery it is its duty to assist or warn passengers alighting from the cars, and the fact that a passenger may be young, strong and active and unencumbered with luggage would not relieve the carrier of such duty.</p> <p>2. —Same—Opinion Testimony.</p> <p>Whether or not it was necessary for a street car conductor to assist women who were not infirm or encumbered with luggage in alighting from the street cars is not a proper subject of opinion or expert testimony; the jury could judge as well as the witness.</p> <p>3. —Personal Injuries—Evidence.</p> <p>In a suit for personal injuries the testimony of witnesses that after the injured party got out of bed she could not lift anything; that she was all crippled up; that she was always suffering pain; that after the accident she was not half the woman she was before, and that she could not walk very far without resting awhile, was not subject to the objection that said statements were conclusions of the witnesses.</p>

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

<p>1. —Secondary Evidence—Admission—Effect.</p> <p>Evidence, although not the best procurable, will be admitted if not objected to, and should then be considered by court or jury as though it was the best of which the case was susceptible, and a judgment rendered thereon will not be disturbed because of its admission.</p> <p>2. —Abstract of Judgment—Certificate—Sufficiency—Presumption.</p> <p>Where an abstract of a judgment was admitted in evidence without objection, although the certificate of the clerk attached thereto failed to show that the abstract had been alphabetically indexed, it should have been presumed that the abstract had been indexed alphabetically, as the law required it to be done. The presumption is that officers do as the law and their duty require them.</p> <p>3. —Same—Case Criticised.</p> <p>The statement in the ease of Lindsey v. State, 27 Texas Civ. App., 540, that a certificate of a clerk to an abstract of judgment was fatally defective because it failed to state that the index was alphabetically made, is obiter dictum.</p>

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

<p>1.—Contributory Negligence—Peremptory Charge—Error.</p> <p>Where, in a suit for personal injuries, it appeared that plaintiff’s wife was assisted in boarding a train before it had fully stopped and that by the jerk of the train in starting again before she had reached a seat she was thrown against a seat and upon the floor, thereby sustaining injuries, it was error for the court to instruct a verdict for the defendant on the ground that the evidence showed as matter of law that the plaintiff’s wife was guilty of contributory negligence.</p> <p>2.—Allegation and Proof.</p> <p>Where the petition alleged that the passenger boarded the train after it had come to a full stop and she was thereafter thrown down and injured by the sudden starting of the train before she was seated, and the evidence showed that the passenger boarded the train bdfore it had come to a full stop and was thereafter injured as alleged by the sudden starting of the train, the variance was immaterial.</p>

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

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

<p>1. —Local Option Election—Official Ballot.</p> <p>The validity of ballots used in a local option election will be determined by the provisions of the statute relating to that subject (article 3388, Rev. Stats.), rather than by section 46 of the Terrell Election Law relating to elections generally.</p> <p>2. —Same.</p> <p>The omission of the words “Official Ballot” from the ballots used in a local option election will not render the ballots invalid.</p> <p>3. —Same—Contest—Burden of Proof.</p> <p>Under the provisions of article 3397, Rev. Stats., relating to the contest of a local option election, the burden of proof rest upon the contestant to prove that but for the alleged illegal votes the result of the election would have been different. In the absence of such proof a new election will not be ordered.</p>

<p>1. —Application of Payments—Limitation.</p> <p>Where there is a continuous account between two parties consisting of many items, and no application of payments is made by either party, the payments will be applied to the debits according to the priority of time.</p> <p>2. —Finding of Fact—No Exception—Cross Assignment.</p>

<p>Appeal from the County Court of Kauffman County. Tried below before Hon. H. H. Cosnahan.</p>

<p>1.—Conversion of Property.</p> <p>In a suit for the value of cotton alleged to have been converted by defendant, evidence considered and held to justify a peremptory instruction to find for the plaintiff.</p> <p>3.—Factors—Their Rights—Estoppel.</p> <p>There is no special, statute in this State protecting factors and commission merchants in advances made upon property consigned to them by persons not the owners. It is only where the owner of property invests another with possession and other indicia of ownership and thus enables him to impose upon a factor and obtain advances upon the faith of such apparent ownership, that he, the owner, would be denied relief against the factor who sold such property and applied the proceeds to the payment of the debt of said apparent owner. And this, by reason only of the law of estoppel.</p> <p>3. —Same.</p> <p>Where a merchant obtained from a factor a loan of money upon the false representation that he had in his possession a certain number of bales of cotton which he would ship to the factor, and thereafter and after the loan was obtained the merchant obtained from a third party possession of a certain number of bales of cotton to be shipped and sold for the account of said third party, and the merchant shipped said cotton to his factor who, without knowledge of the facts, sold the cotton and applied the proceeds to the merchant’s account, the third party, the owner of the cotton, was not estopped by any act of his, and was entitled to recover the proceeds from the factor.</p> <p>4. —Factor—Expenses—Pleading.</p> <p>Where, under the facts stated in the foregoing paragraph, in a suit by the owner of the cotton against the factor for the value of the same the factor neither pleads nor proves in the trial court the amount of freight paid by him on the cotton nor the amount of his commissions for the sale of the same, the claim for these expenses comes too late on appeal.</p>

Tried below before Hon. W. R. Butler. Appellant claimed that damages recovered for hogs of plaintiff drowned in the overflow were not proximately caused by the embankment of defendant’s road because the water at the point in question was not backed up thereby but came from overflow of a stream not affected by such embankment. The question presented was one of fact.

<p>1.—Draft—Account—Assignment—Joinder of Parties—Plea of Privilege.</p> <p>A creditor attached to a draft against his debtor his account for the amount of the draft, being for the price of a carload of merchandise ordered and refused on arrival, less the sum brought thereby on resale, but by miscalculation the amount was for more than the real difference due. A bank, having cashed the draft, which the debtor refused to accept, sued' both him and the drawer in the county of the latter’s residence. Held (1), that the account was assignable; (2) that the draft, being for the full amount of the account due, or more, and having the account attached, operated as an assignment of the claim to the bank; (3) that the drawer and drawee were properly joined as defendants in the suit by the bank; (4) that the drawee’s plea of privilege to be sued in the county of his residence could not be sustained. Following rulings of Supreme Court herein on certified questions, 100 Texas, 214.</p> <p>2.—Evidence—Intention.</p> <p>The unexpressed intention of the drawer that the draft should operate as an assignment of the debt was not admissible in evidence.</p>

<p>1. —Master and Servant—Assumed Bisk—Statute Construed.</p> <p>The effect of the Act of 1905 (Gen. Laws, p. 386) was to eliminate the plea of assumed risk in any case where an employe has an opportunity before being injured to notify his employer, or superior given authority to remedy defects, of the existence of such defects, and does notify such employer or superior within a reasonable time. No such notice is required when the employer or superior knows of the defect. It also destroys the force of a plea of assumed risk where a person of ordinary care would remain in the service of his employer with knowledge of such defect and danger. The questions arising under said Act are questions of fact to be determined by a jury.</p> <p>2. —Same—Fact Case.</p> <p>Where a fireman was injured by the explosion of the “water glass” upon the locomotive, it was a question of fact for the jury to determine whether a person of ordinary care would have remained in the service of the defendant company when he knew that a defective water glass was being used, and the danger attending its use.</p> <p>3. —Assumed Bisk—Contributory Negligence—Distinction.</p> <p>Entering or remaining in the employment of one who is known to furnish defective appliances might be assuming the risks arising therefrom, but it would not be contributory negligence. The latter is the doing of some such act or omission amounting to the want of ordinary care, as, concurring with some negligent act of the master, is the proximate cause of the injury for which redress is sought. The first is an intelligent choice, the latter is carelessness.</p> <p>4. —Safe Appliance—Question for Jury.</p> <p>Whether or not a given appliance (in this case a water glass upon a locomotive) was a safe one, was a question to be determined by a jury and not by the railroad company. Evidence considered, and held to sustain a finding. that the defendant was guilty of negligence in failing to use an improved water glass.</p> <p>5. —Assumed Bisk—Passage of law.</p> <p>The Act of April, 1905, inured to the benefit of those already in employment as well as to those subsequently entering employment, and applied to defects in original construction as well as to those which arose from a failure to keep appliances up to the proper standard of safety.</p> <p>6. —Defective Brief—Statement.</p> <p>Where, in lieu of a statement under an assignment of error, reference is made to many pages of evidence copied in the brief under other assignments, and to certain pages of the transcript, it is not a compliance with the rules for the preparation of briefs.</p> <p>7. —Seasonable Care—Evidence.</p> <p>The mere fact that a railroad company purchases its appliances from the greatest manufacturer of the same in the world is not of itself conclusive evidence that it was not guilty of negligence.</p> <p>8. —Assumed Bisk—Act Constitutional.</p> <p>The Act of 1905, concerning assumed risks is constitutional. The Legislature has the authority to compel the adoption by railroad companies of devices and appliances for the protection of those in their service; can declare that the doctrine of fellow servants shall not apply in eases arising between railways and their employes, and can alter, change or abolish the law of assumed risks. In determining the constitutionality of a law the same rules do not apply to laws for the regulation of corporations, creatures of the law; as apply to the government of natural persons not engaged in public service.</p> <p>9. —Same—Police Power.</p> <p>The regulation of railroads by the State is but the exercise of its police power over the creatures of its own creation, and there is no limit to this power except that it must be exercised for the comfort, safety or welfare of society; that it must not destroy any charter privileges, nor interfere with any vested rights. ,</p> <p>10. —Same—Discrimination.</p> <p>The Act of 1905, concerning assumed risks, is not unconstitutional because of unjust discrimination in favor of interurban electric railways. Legislation is not discriminatory that applies alike to all of the same class.</p> <p>11. —Passage of Act—Invalidity—Proof.</p> <p>The journals of the Legislature can not be looked to to invalidate a statute which was signed by the President of the Senate and Speaker of the House and approved by the Governor. These facts afford conclusive evidence that the Act was passed in the manner required by the Constitution.</p> <p>12. —Same—Case Distinguished.</p> <p>The case of Missouri, K. & T. By. Co. v. McGlamory, 92 Texas, 150, does not hold that irregularity in the passage of a law may be shown by the journals of the Legislature, but merely that they may be looked to in determining when a statute went into effect.</p>

<p>1. —Insolvent Debtor—Purchase of Homestead.</p> <p>S., an insolvent debtor, recovered a judgment for $3,000 against a railroad company; on the same day the judgment was rendered he transferred his entire interest in the judgment to his attorney in the railroad ease; this was done upon the suggestion of said attorney and for the avowed purpose of preventing any of the other creditors of S. from getting the money; S. was indebted to the attorney in the sum of $1,800 for attorney’s fee and advances, and the remaining $1,200 was for the purchase money of a home conveyed to S. by his said attorney on the same day. Held, the transaction was valid as against a garnishing creditor of S.</p> <p>2. —Same.</p> <p>A disposition of property subject to execution by a debtor for the purpose of acquiring a homestead is not a fraud upon creditors.</p>

<p>Appeal from the Forty-fifth District Court, Bexar County. Tried below before Hon. J. L. Camp.</p>

<p>Railroad—Adjacent Property—liability.</p> <p>If private property is in fact damaged or depreciated in value by the construction of a railroad along a street near the same, the fact that the roadbed • and track were constructed with the highest degree of skill and care, and that its engines and trains were carefully and skillfully operated, would *e no defense.</p>

<p>1. —Will—Residuary Clause—Construction.</p> <p>A will contained the following provisions: “Item 2. Í give and bequeath to my beloved wife C. for and during her natural life or so long as she shall remain unmarried, my half interest in my family residence and homestead” (and other property, describing the same) “the said property to be held by her for the use and benefit of herself and the support and education of our children as hereinafter directed.” Also the following: “Item 3. I give and bequeath all the residue of my estate real and personal and mixed to my said wife and the children of her by me begotten, to be by them held and enjoyed in equal interest, share and share alike.” Held, that under the residuary clause, and in view of the evidence, the estate in remainder, after carving out the particular estate devised to the wife and her children, in the property described in item 2, vested in fee simple in the wife named and her children, to the exclusion of other children of the testator by a former wife.</p> <p>2. —Same.</p> <p>An estate in reversion or remainder passes by a general residuary clause. It is presumed that a testator intended to dispose of his entire estate and not only a part.</p>

<p>Appointment of Receiver.</p> <p>A. owned a tract of timber land and B. owned a saw mill; by a contract in writing between the parties A. employed B. to cut the timber on said land into lumber at an agreed price, B. to set up his mill on the land within a certain time; it was understood at the time the contract was made that A. would sell his land and assign the contract; the plaintiff became the purchaser and assignee with full knowledge of the terms of the contract; nothing was said in the contract about the removal oí the mill nor about its remaining on the land after the completion of the work; on the ground that B. had abandoned the contract and that it would suffer irreparable injury plaintiff prayed for the appointment of a receiver to take charge of and operate the mill, claiming that' the agreement constituted a partnership and that the mill and appurtenant machinery were fixtures on the land. Held, the mill and machinery were not fixtures; defendant had the right to remove them upon termination of the contract; plaintiff and defendant were not partners, and consequently plaintiff was not entitled to have a receiver appointed.</p>

<p>1. —Plea of Privilege—Burden of Proof.</p> <p>It devolves on the one presenting a plea of privilege to establish its material averments.</p> <p>2. —Venue—Place of Performance.</p> <p>Where the defendant, a private corporation, having its domicile in Harris County, contracted in Harris County with the plaintiffs, doing business in Chambers County, to furnish supplies to parties in Chambers County, and the supplies were so furnished in Chambers County, a suit upon open account for the supplies furnished was properly brought in Chambers County.</p> <p>3. —Date in Pleading—Mistake.</p> <p>Where a date given in the pleading is clearly a clerical mistake and is corrected by other parts of the record the court properly ignored such mistake in rendering judgment.</p>

<p>1.—Pleading as Evidence.</p> <p>In a suit for personal injuries, the defense being that the plaintiff was in the employ of an independent contractor and not of defendant at the time of the injury, it was error to exclude plaintiff’s petition, when offered in evidence by defendant, in which it was alleged that plaintiff “was in the employ of M., an independent contractor of defendant company, at the time he was injured.”</p> <p>Z.—Personal Injuries—Independent Contractor.</p> <p>Defendant company was operating a sawmill; for the purpose of moving the lumber from the mill to the yard it had provided a tramway; it contracted with M. to move the lumber at so much per thousand, M. to employ and pay his own help, the defendant reserving the right to discharge an objectionable person; the defendant owned and maintained the tramway, ears, mules, etc., n M. and his employes simply had the use of them in the performance of the work, the defendant directing when and how the work should be done; the plaintiff was employed by M. and was injured by the breaking of a defective plank in the tramway while driving one of the cars. Held, that M. was not such an independent contractor as would exempt the defendant from liability to plaintiff.</p> <p>3,—Same—Assumed Bisk.</p> <p>An employe assumes only such risks as he had, or ought to have had knowledge of.</p>

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

<p>1. —Transportation of Passenger—Delay—Damages—Tort.</p> <p>The plaintiffs, husband and wife, boarded defendant’s train at Ft. Worth to be carried to their home, distant about one hour’s ride; the train was delayed and held at Ft. Worth about three hours; no notice was given to the plaintiffs of the intended delay of the train, and they remained in the car; the weather was warm and sultry and the car unventilated; the wife had recently undergone a severe surgical operation and had just been discharged from the hospital; she was still nervous, weak and debilitated; she had need to use the toilet in the coach but could not do so because it was locked; because of the extreme heat and discomfort during her confinement in the car the wife became very nervous and weary and suffered great physical and mental pain and mortification from which resulted a nervous shock and collapse that rendered her helpless to such an extent that upon arrival at her destination it was necessary to carry her upon a cot from the train to her home; she was thereafter confined to her bed with fever for two weeks, and chronic bladder trouble ensued. Under these facts plaintiffs’ cause of action was one for a tort, founded upon a contract, and not one simply for special damages resulting from breach of contract.</p> <p>2. —Same—Degree of Care—Notice.</p> <p>A railway company owes a duty to persons other than those of ordinary healthful condition. They are presumed to know that persons, old, decrepit and infirm travel on their trains and they must exercise care accordingly.</p>

<p>Lifé Insurance—Benefit Certificate—Failure to Deliver—Right to Benefit.</p> <p>An applicant for membership in a local camp of Woodmen of the World had been duly elected and initiated and had conformed to all the requirements of the Order, entitling him to a benefit certificate, but through the negligence of the Sovereign Camp the certificate, although issued, failed to be delivered to him before his death. Held, the beneficiary was entitled to the benefit, notwithstanding a provision in the constitution of the Order that the liability of the Order should not begin until the benefit certificate was delivered to the member in person.</p>

Tried below before Hon. John C. Caiman. Appellant’s exceptions to the admission in evidence of the bill of lading were qualified by the trial judge by the statement that the contract purported to be that of the “Frisco” road; that it was received by the consignees from the shipper, through the mail in regular course of business, and was, in accordance with the requirement of the railways, submitted to them and acted on by them in investigating the claim for damages made by…

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

<p>1. —Passenger Carrier—Negligence—Locked Door.</p> <p>Whether or not it was negligence towards passengers for a railway company to keep the front door of its coach locked was, it seems, a question of fact; special exception did not lie to the allegation of such fact since it was proper to explain delay of a passenger in leaving the car and inducing the circumstances of leaving it, and evidence thereof was admissible for such purpose.</p> <p>2. —New Trial—Control of Judgment During Term.</p> <p>The jurisdiction of the District Court over its own judgments continues through the term at which they were rendered, and after overruling one motion and notice of appeal given it may still entertain another motion and grant new trial on it.</p> <p>3. —Pleading and Evidence.</p> <p>Substantial correspondence between the allegations and the proof is all that is required.</p> <p>4. —Evidence—Declarations of Injured Person.</p> <p>Statements made by plaintiff a few minutes after being injured, explaining his falling from the train to be caused by being pushed off by the porter, in answer to questions by bystanders who came to his assistance, were admissible as part of the res gestae.</p> <p>5. —Same.</p> <p>Declarations of an injured party to bystanders, constituting res gestae, may be testified to by the injured party himself. If he had testified differently on a former trial, professing to.have been unconscious of what he said, this went to the credit to be given his statements, not to their admissibility:</p> <p>6. —Witness Under Rule.</p> <p>It is within the discretion of the trial court to permit a witness to testify who, after being put under rule, has remained in court and heard the testimony. See circumstances held to show no abuse of such discretion.</p> <p>7. —Passenger—Degree of Care—Charge.</p> <p>Jt was proper to define the care required of a carrier of passengers as that of very cautious and prudent persons and that of the passenger as of persons of ordinary prudence, nor was it erroneous to give these instructions by paragraphs in juxtaposition.</p> <p>8. —Passenger—Charge.</p> <p>The evidence supporting the theory that plaintiff was a passenger and the charge defining the care necessary from defendant in that relation, defendant can not complain of the failure to state the degree of care required if the relation of carrier and passenger had terminated, though there was evidence to support this view also, unless he requested such instructions.</p> <p>9. —Charges—Inconsistency.</p> <p>Charges on the law governing the cases respectively of a passenger injured in leaving a train in motion by jumping off, falling off, or being pushed off by the train porter, considered and held not inconsistent nor erroneous.</p> <p>10. —Charge—Repetition.</p> <p>A theory of the case should not be given undue prominence by repeated charges. One whose requested instruction on a certain hypothesis has been given, is not entitled to complain of the refusal of a later charge asked on the same subject and made more specific.</p> <p>11. —Master and Servant—Train Porter—Passenger.</p> <p>A master is liable for the wrongful or negligent act of his servant done in the course of his employment, though the particular act was unauthorized and unlawful, as where a train porter pushed a passenger from the platform of a moving car.</p> <p>12. —Damages.</p> <p>Recovery of $15,000, as damages for personal injury to a minor in falling or being thrown from a moving train, sustained as not excessive.</p>

<p>1.—Evidence—Relevancy.</p> <p>In an action for causing overflow of plaintiff’s land evidence that it overflowed frequently after the construction of the railway and not at all before was admissible.</p> <p>Z.—Overflow—Pleading—Evidence.</p> <p>The allegation that the railway structures caused the water to flow on plaintiff’s land was sufficient to admit evidence that the railway had this effect, the direction in which it was caused to flow in order to do so not being material nor necessary to prove strictly as alleged.</p> <p>3. —Growing Crops—Measure of Damages.</p> <p>Where a market garden was destroyed by flood at a time when part of the crop was matured and all far advanced, the market value of the crop at the time of its destruction was the-proper measure of damages. .</p> <p>4. —Juror as Witness.</p> <p>It is within the discretion of the trial judge to refuse to permit a juror to be sworn as a witness. See circumstances under which it is held that such discretion was properly exercised.</p>

<p>Appeal from the District Court of Duval County. Tried below before Hon. Stanley Welch.</p>

<p>Appeal from the Thirty-seventh District Court, Bexar County. Tried below before Hon. Edward Dwyer.</p>

<p>Appeals—Briefs—Buies.</p> <p>Where the brief of appellant does not show in and of itself what the issues in the case were; or when the propositions are not germane to the assignment of error under which they appear; or when it is not shown in the brief that evidence objected to was in fact introduced, nor what objection was urged to the same, nor that exception was taken to the action of the court; or when the assignments of error are not copied into the brief, the brief is fatally defective. Brief considered, and held to illustrate the defects mentioned.</p>

<p>1. —Personal Injuries—Charge.</p> <p>In a suit for personal injuries received while attempting to board a street car, charge considered and held not obnoxious to the objection that it assumed the existence of certain facts.</p> <p>2. —Insufficient Brief.</p> <p>Where an assignment of error is based upon a refusal to give a requested instruction, and the brief does not contain a sufficient statement of the evidence tó show the applicability of the instruction, the assignment of error will not be considered.</p> <p>3. —Fright—Cause of Action.</p> <p>When physical injury results from fright caused by the wrongful act of another, and such injury was the natural and probable consequence of the wrongful act, a cause of action exists therefor.</p>

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

<p>1. —Stock of Goods—Fraudulent Sale—Creditors.</p> <p>Where a sale of a stock of merchandise is fraudulent and void as to creditors, . but an actual sale as between the vendor and vendee, and the stock is replenished by the vendee with the proceeds of the sale of such stock, a defrauded creditor may levy an execution or attachment only upon the identical articles which the vendee received under the fraudulent conveyance. It is otherwise where the sale is only a sham and not intended to pass the title from the vendor to the vendee.</p> <p>2. —Same.</p> <p>Where the sale of a stock of merchandise is fraudulent as to creditors and the vendee with notice of the fraud converts the proceeds of the property, a creditor may have a remedy by direct proceeding against the vendee for the value of the property so converted.</p>

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

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

<p>Completed Sale—Evidence.</p> <p>In a suit against a railroad company for damages caused by a failure to promptly furnish ears for the. shipment of cattle, evidence' considered and held to show that plaintiff’s purchase of the cattle was complete and the title was in him at the time of the damage.</p>

<p>1. —Eminent Domain—Distinction Between Taking and Damaging.</p> <p>If private property is actually taken for public use the owner must be compensated therefor, and no benefit which the owner may receive from the public use to which his property is subjected can be set off against the value of the property so taken. A different rule applies where the dominion of the owner over the property is not invaded but the property is damaged by the construction and maintenance of public works or ways, and in such case the special benefits to the owner’s property accruing from the public improvement can be offset against any damage caused thereto by such improvement.</p> <p>2. —Damage to Property—Pleading.</p> <p>Where in suit for damage to a block of ground consisting of several lots by the construction of a tunnel in the street the plaintiff’s petition treats his property as a whole and damages are asked in a lump sum for injury to the entire property, and the evidence showed that the entire property was used for one purpose it was proper for the court to submit to the jury the issue of damage to the property as an entirety, although one of the lots in the block may have been damaged more than the others.</p> <p>3. —Closing Street—Ordinance—Cause of Action.</p> <p>The mere passage of an ordinance authorizing the closing of a street would not give a cause of action for damage to property abutting on such street. Such cause of action could only arise when the street was in fact closed or discontinued; and the fact that the street was made narrower would not be sufficient, provided a thoroughfare was left.</p> <p>4. —Charge—Burden of Proof.</p> <p>While a charge upon the burden of proof may not have been required in a given case, still where it appears from the charge as a whole that the jury could not have been misled by it it is not reversible error.</p> <p>5. —Value of Property—Rendition for Taxation.</p> <p>Renditions of property for taxes when made by the owner or by his authority or acquiesced in by him are admissible in evidence as a circumstance tending to show the value of the property at the time the rendition was made.</p> <p>6. —Street Improvement—Public necessity.</p> <p>The fact that certain street improvements are a public necessity will not relieve the parties responsible from liability for injury thereby caused to private property.</p>

<p>Appeal from the County Court of Victoria County. Tried below before Hon. Ben W. Fly.</p>

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

<p>1. —Amount in Controversy—Damages—Interest—Pleading.</p> <p>In a suit in County Court for damages to real property by burning grass, etc., a prayer for judgment for $995 and for general relief does not claim an amount beyond the jurisdiction of the court. Interest, though recoverable in such case only as part of the damages, would be computed to make up the amount of damages so laid, and not as additional general relief.</p> <p>2. —Damage to Land—Pleading.</p> <p>Pleading alleging the value of land to be diminished in a stated amount by fire, is not subject to special demurrer for failing to state the value of the land before the burning and that after it.</p> <p>3. —Damages—Opinion—Market Value,</p> <p>Though there was no fixed market value for growing grass or for the land after the destruction of it by fire, ■ a witness may give his opinion as to the relative value of the land before and after the fire, giving the facts on which his opinion is based.</p> <p>4. —Railway—Escape of Eire—Charge—Burden of Proof.</p> <p>An instruction that a railway company was not responsible for damages caused by escape of fire from its engines unless it failed to use ordinary care to prevent its escape was objectionable as changing the burden of proof fixed by the law in such cases.</p>

<p>1. —Unrecorded Deed—Junior Purchaser—Burden of Proof. '</p> <p>The burden of proof is upon a junior purchaser of land to show that he had no notice of a prior unrecorded deed to the same land and that he paid a valuable consideration therefor.</p> <p>2. —Same—Sheriff’s Sale—Burden of Proof.</p> <p>The burden of proof is upon the holder of a prior unrecorded deed to show that the plaintiff in execution under which land is sold had notice of such prior deed at the time the execution was levied. Notice to the purchaser at the execution sale would not affect his title if the plaintiff in execution had no notice at the time he acquired his judgment or execution lien.</p> <p>3. —Same—Notice of Unrecorded Deed.</p> <p>Although it appeared from the mortgagor’s deed to the land in question that there were 2,406 acres in the tract, still a statement in the mortgage that the amount of land owned by him was about 1,700 acres was sufficient to charge the mortgagees with notice that a part of the original tract had been sold by the mortgagor, and in a subsequent partition of the land between the mortgagor and mortgagees the prior conveyances made by the mortgagor should first be deducted from the original tract and only the remainder partitioned.</p>

<p>1. —Foreign Corporation—Interstate Transaction.</p> <p>Where in a suit hy a foreign corporation against a citizen of this State for the purchase price of machinery, there was nothing in the pleading of plaintiff or proof adduced to show that the plaintiff was transacting business in this State, it was not necessary for the plaintiff to allege and prove that it had a permit to do business in this State,</p> <p>2. —Sale of Machinery—Breach of Warranty—Remedy.</p> <p>Where" the purchaser of machinery sold under warranty of fitness and quality receives and retains the same his remedy for breach of the warranty is suit upon the warranty, and his measure of damages is the difference between the market value of the machinery delivered and that contracted for, and such consequential damages as the facts authorize, and he must furnish the evidence on which a verdict might be predicated.</p> <p>3. —Undisputed Testimony—Credibility—Question for Jury.</p> <p>Even though the testimony of witnesses as to an issuable fact may be undisputed by direct testimony, still when there are circumstances in evidence tending to discredit their testimony, as for instance, bias, prejudice, uncertainty, unwillingness to testify fully and frankly, or interest in the controversy on the part of the witnesses, it is proper for the court to submit the issue to the jury.</p> <p>4. —Same—Submission of Issue.</p> <p>It is not always reversible error for the court to submit to the jury as an issuable fact one concerning which the testimony is undisputed. If the testimony is overwhelmingly in favor of the fact it will not be presumed that the jury were misled by the doubt implied by the submission of the issue.</p>

<p>1. —Resulting Trust—Construction of Deed.</p> <p>Two brothers, partners in business, purchased from Z. H. (one of two heirs) an undivided half interest in a tract of land; they then purchased, by bond for title, from the administrator of the other heir, J. R. D., the other undivided half interest, paying cash at the date of the bond; after the death of one of the brothers the said administrator executed a deed to the surviving brother reciting that it was in discharge of the obligations of the bond for title; on the same day the surviving brother executed a deed to the heirs of his deceased brother reciting a cash consideration of about one-half the amount originally paid the administrator, but describing the land conveyed as his undivided interest in the Z. H. undivided half, which he and his deceased brother had bought from Z. H. Held, under all the evidence, that, notwithstanding the description in the deed to the heirs it was the intention of the surviving brother to discharge the resulting trust arising by reason of the administrator’s deed to him and to make the heirs of his brother only equal owners with himself in the entire tract.</p> <p>2. —Same.</p> <p>The fact that a bond for title executed by an administrator in his own behalf and as administrator was not binding upon the estate, and the fact that the purchase money was paid at the date of the bond, about two years before the date of the deed executed in persuance of the bond, will not prevent a trust from resulting in favor of the heirs of a deceased obligee in the bond upon the execution of the deed by the administrator to the surviving obligee.</p>

<p>Landlord and Tenant—Holding Over—Implied Contract.</p> <p>The mere fact that a tenant holds over the rented premises after the expiration of the term does not raise a conclusive presumption that he holds under the terms of the expired contract. This presumption is one of fact and may be rebutted by proof that he refused to do so.</p>

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

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

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

<p>Appeal from the County Court of Harris County. Tried below before Hon. Blake Dupree.</p>

<p>1. —Resulting Trust—Pleading—Evidence.</p> <p>A petition alleging that land purchased by and conveyed to the step-father of plaintiffs was paid for with community funds of his wife and her deceased husband, the father of plaintiffs, was sufficient to show title in them by resulting trust to a half interest in the land. Evidence considered and held to support a finding that the consideration was so paid.</p> <p>2. —Resulting Trust—Limitation—Laches.</p> <p>Limitation or plea of stale demand can not run against the enforcement of a resulting trust until such trust has been repudiated.</p> <p>3. —Fiduciary Relation—Pleading.</p> <p>Allegations that the mother and step-father of plaintiffs exercised parental authority over them and managed and controlled the community property in which they had an interest, during their minority, were proper as matters of ■ inducement and to show a fiduciary relation.</p> <p>4. —Resulting Trust—Pleading.</p> <p>There was no inconsistency between the allegations that the step-father took title in. his own name to lands paid for with community property of plaintiffs, and that he acknowledged the existence of the resulting trust arising from such transaction. Their rights arose by operation of law upon the facts of the transaction and were not dependant on any promise by the holder of the legal title to convey to them.</p> <p>fi.—Same.</p> <p>Allegations of facts from which a resulting trust arises are sufficiently specific without pleading the evidence establishing such facts.</p> <p>6.—Resulting Trust—Time of Payment.</p> <p>Where the execution of the deed and payment of the consideration constitute substantially one transaction it is not necessary that they be cotemporaneous in order to create a resulting trust. Payment on delivery of the deed would be sufficient to create the trust, though subsequent to the date of its signing.</p> <p>7. —Effect" of Evidence—Controlling by Charge.</p> <p>Where objection to evidence was limited to its competence for a particular purpose, the error in admitting it, if any, is cured by an instruction that it could not be considered for that purpose.</p> <p>8. —Resulting Trust—Possession in Good Faith—Improvements.</p> <p>The holder of land subject to a resulting trust is not a possessor in good faith entitled to recover the value of improvements, and can not complain that rents for which he could not be held liable were offset against his claims therefor.</p> <p>9. —Community Property—Rents.</p> <p>Rents received by the husband for real property, community estate of the wife and the heirs of her deceased husband, are themselves property of such community.</p> <p>10. —Resulting Trust—Intention.</p> <p>A resulting trust arises by operation of law, independently of any intention on the part of the one taking the legal title to hold in trust for those whose means furnished the consideration for the conveyance.</p> <p>11. —Resulting Trust—Declarations of Trustee.</p> <p>Declarations of the holder of the legal title subsequent to the conveyance to him, though not creating the trust, are admissible as evidence of its former creation and its recognition by him.</p> <p>12. —Community Property—Interest of Heirs.</p> <p>The resulting trust in favor of plaintiffs was established by showing that community property belonging, prima facie, one-half to them, went to pay for the land sued for. If the community had been exhausted in paying the claims j of the surviving wife on account of her separate property, so as to leave the heirs no interest, this was matter of defense.</p>

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

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

<p>1. —Heading—Issues—Charge.</p> <p>A party has a right to have the issues raised by his pleadings specially presented and submitted, and this, although the court has already submitted the issues in general terms in its main charge.</p> <p>2. —Undisputed Evidence—Submission of Issue.</p> <p>Where the facts supporting a defense are undisputed only the defendant can complain of such facts being submitted as an issue.</p> <p>3. —Charge—“Accident.”</p> <p>The use of the word “accident” by the court in its charge is not necessarily misleading as tending to cause the jury to believe that the injuries were not the result of defendant’s negligence.</p> <p>4. —Charge—Repetition.</p> <p>In a suit for personal injuries received while alighting from a passenger eo.ach it was not error for the court to give a special charge to the effect that plaintiff was not entitled to recover unless it was shown by a preponderance of the evidence that defendant was negligent, although the court had in its main charge instructed the jury that the burden of proof was upon the plaintiff to establish by a preponderance of the evidence the material allegations of his petition.</p>

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

<p>1. —Carrier—Negligence—Evidence.</p> <p>In a suit for personal injuries caused by the breaking of an automatic coupler whereby the plaintiff was thrown from the car, evidence considered, and held to support a finding by the jury that the defendant was guilty of negligence in the handling of its train, and that such negligence caused the breaking of the coupler.</p> <p>2. —Suppression of Evidence.</p> <p>The refusal to produce material evidence upon demand of the opposite party is a circumstance which may be taken into consideration in determining a question of fact.</p> <p>3. —Negligence—Prima Facie Case.</p> <p>When, in a suit for personal injuries, plaintiff proved the breaking of the coupler, the parting of the train and his consequent injury, he made a prima facie case of negligence against the defendant, and the burden then devolved on the defendant to show proper care for the safety of its passengers, including a proper inspection of appliances on the train.</p> <p>4. —Verdict not Excessive.</p> <p>Evidence of injuries considered, and held to support a verdict for $15,000 damages.</p>

<p>1. —Derailment—Cyclone—Act of God.</p> <p>In a suit for personal injuries received in a wreck of a freight train caused by a tornado, evidence reviewed, and held to show that plaintiff’s injuries were caused solely by the act of God, unmixed with negligence of the defendant.</p> <p>2. —Common Carrier—Act of God.</p> <p>When loss or damage is caused by the act of God a common carrier is not liable for such loss or damage, though it may have been negligent, unless it is shown that there was some causal connection recognized by the law between the negligence of the carrier and the loss or damage incurred.</p>

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

<p>1. —Bill of Lading—Shipper’s Order Notify.</p> <p>By the provision “shipper’s order notify” in a bill of lading is meant that •the shipment must be held by the carrier until the consignee obtains possession of and presents the bill of lading. Such a shipment is called a “closed” shipment. Without said restriction the shipment is said, to-be “open,” and the carrier is authorized to deliver the freight to the consignee upon identification.</p> <p>2. —Estoppel—Evidence.</p> <p>S. ordered L. to ship a carload of corn to R.; the com was shipped and L. drew a draft on S. for the agreed price with a closed bill of lading attached; the draft was paid by S., who then drew on R. for the price of the corn with the bill of lading attached; R. failed to pay the draft and soon thereafter became insolvent; the copy of the bill of lading retained by the railroad showed an open shipment and the corn was delivered by the railroad without presentation of the bill of lading; S. sued L. and the railroad for the value of the corn claiming that he ordered a closed shipment and that L., by attaching a closed bill of lading to his draft, had misled him to his damage; the issue as between S. and L. was whether or not S. had in fact ordered a closed shipment. Held, the issue of estoppel was not properly in the case and the charge of the court submitting such issue was prejudicial to L. rather . than to S.</p>

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

<p>1.—Conflicting Evidence—Verdict.</p> <p>In a suit to enjoin the sale of a promissory note on the ground that the same was subject to a credit which was not endorsed, evidence considered, and held sufficient to support the verdict of the jury in plaintiff’s favor.</p> <p>3.—Amount of Hote—Fraud—Injunction.</p> <p>When the facts are such that the maker of a note, if sued upon the same, could defend on the ground that the face of the note called for a larger amount than the maker owed, or that the note was entitled to a credit, the same facts would warrant affirmative relief by injunction to prevent the sale of the note by the holder.</p> <p>3.—Hew Trial—Hewly Discovered Evidence—Insufficiency.</p> <p>A motion for new trial on the ground of newly discovered evidence is properly overruled when the newly discovered evidence consists of the testimony of witnesses who testified on the trial, and there is nothing to show that the testimony could not have been elicited at that time.</p>

<p>1. —Argument—Opening and Conclusion—Practice.</p> <p>Where, in a suit upon a promissory note the defendant admitted the right of the plaintiff to recover unless defeated by the matters plead by defendant, the defendant has the right to open and conclude the argument.</p> <p>2. —Hearsay Testimony—Harmless Error.</p> <p>The admission of hearsay testimony is rendered harmless when competent testimony to the same effect is afterwards introduced.</p> <p>3. —Continuance—Diligence.</p> <p>A party is not entitled to a continuance to obtain testimony of the materiality of which he is informed by the pleadings of the opposite party but has used no diligence to secure.</p> <p>4. —Bank Account—Evidence.</p> <p>The books of a bank are the best evidence of the account of a customer with the bank, and a parol statement of the same is properly excluded.</p> <p>5. —Verdict—Conflicting Evidence—Practice.</p> <p>When the evidence is conflicting the judgment of the trial court will not be set aside on appeal even though it seems to be against the more reasonable and probable version of the controversy.</p>

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

<p>1. —Failure of Title—Abatement of Purchase Price.</p> <p>H. sold to R. three sections of land as one transaction for one stated consideration. The title to one of the sections failed. Held, that B. was entitled to an abatement in the purchase price according to the value of the section lost, and not merely one-third of the purchase price, in the absence of evidence that the sections were valued separately by the parties at the time of the purchase.</p> <p>2. —Deed—Mutual Mistake—Equitable Relief.</p> <p>The fact that a deed contained only a special warranty, conveyed only the right, title and interest of the grantor in the land, and in the granting clause used the terms “bargain, sell, release and forever quitclaim” will not preclude the grantee from equitable relief when there was “a mutual mistake of a material fact which caused the deed to be executed and accepted.</p>

<p>Appeal from the County Court of Gaines County. Tried below before Hon. A. H. Webb.</p>

<p>Usury—Venue—Statute Construed.</p> <p>The act of taking or receiving usurious interest is not such a tort as is referred to in subdivision. 6 of article 1585 of the Revised Statutes, and a suit to recover the statutory penalty for receiving usurious -interest must be brought in the county of defendant’s residence.</p>

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

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

Tried below before Hon. John M. Furman. Defendant was owner of a rock quarry, Rettiker was its general manager, and Bruce a carpenter in charge of the erection of a rock crushing machine for defendant about which plaintiff and other laborers were employed. Bruce had authority to direct them in their work, but not to employ or discharge them.

<p>Mental Suffering.</p> <p>For the mere prolongation of mental suffering a recovery is not allowed.</p>

<p>1. —Personal Injuries—Pact Case.</p> <p>In a suit for personal injuries caused by the giving way of a handhold and stirrup on a freight car, evidence considered and held sufficient to preclude the giving of a peremptory instruction for the defendant and to warrant the trial court in overruling defendant’s motion for new trial.</p> <p>2. —Same—Allegations—Charge.</p> <p>Where, in a suit for personal injuries, the trial court submits the case in substantial accordance with the allegations of the petition, the defendant should request more specific instructions if it deems the charge too general.</p> <p>3. —Bodily Injury—Mental Anguish.</p> <p>Serious and continuing bodily injury will support a finding of mental anguish.</p>

<p>Appeal from the Forty-fifth District Court, Bexar County. Tried below before Hon. J. L. Camp.</p>

<p>1. —Personal Injuries—Charge—Contributory Negligence and Assumed Bisk.</p> <p>In a suit for personal injuries a charge by the court that the plaintiff was entitled to recover if the jury found certain facts to exist unless they “further believe from the evidence that plaintiff was guilty of contributory negligence and that he assumed the risk,” held not subject to the objection that the charge required the jury to find that plaintiff was guilty not only of contributory negligence, but that he also assumed the risk which resulted in his injury before they could find for defendant. Galveston, H. & S. A. Ry. Co. v. Cherry, 98 S. W. Rep., 900, followed.</p> <p>2. —Assignments of Error—Grouping.</p> <p>Where assignments of error involve separate and distinct rulings of the court, and the same points do not arise from nor can they be stated as propositions under each, such assignments can not be properly grouped in the brief.</p> <p>3. —Special Charges—Notation Upon.</p> <p>The giving or refusal of requested instructions can not be considered on appeal unless the action of the trial judge concerning the same be noted thereon and signed by him. Notations upon the margin of the transcript by the clerk can not be given any effect.</p>

<p>1.—Injunction—Demurrer—Res Adjudícala.</p> <p>A judgment rendered upon general demurrer to a petition for injunction is as final and conclusive of the issues involved as if rendered upon a hearing of the facts, and if not appealed from is a har to another suit between the same parties upon the same cause of action.</p>

<p>1. —Petition—Specific Allegations—Illiteracy—Demurrer.</p> <p>Where, in a suit to annul a deed, which was alleged to have been obtained by fraud, and to have been intended by the parties as a mortgage to secure certain items of indebtedness due by the grantor to the grantee and which had been paid, it appeared from the petition that the plaintiffs were illiterate and unable to give the dates and amounts of the various payments made by them, and it was asked in the petition that the defendants be required to render a full account of the payments received, a special exception to the petition on the ground that it was not more specific in its allegations as to the dates and amounts of payments was properly overruled.</p> <p>2. —Deed as Mortgage—Limitation.</p> <p>Where a deed absolute in form was in fact a mortgage limitation against a suit to cancel the same will not begin to run until the mortgage debt is paid, or until the grantee refused to allow the grantor to redeem the property.</p> <p>3. —Deed—Misdescription—Correction. ■" ■</p> <p>A court of equity will correct a mistake in the description of property in a deed and make the instrument conform to the intention of the parties, and this even where the deed is executed by a married woman. „</p> <p>4. —Homestead—Mortgage.</p> <p>In a suit to cancel a mortgage upon the homestead the defendant may have personal judgment for such indebtedness as may be due by the- plaintiff not barred by limitation, but no lien should be fixed upon the homestead except for such indebtedness as the homestead may be lawfully subjected to.</p> <p>5. —Taxes—Bedemption by Third Party.</p> <p>Where a third party redeems a homestead from tax sale, at the request of the owner, and takes the deed in his own name, he holds it in trust for the owner.</p>

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

<p>1. —School land—Abandonment—Forfeiture.</p> <p>Abandonment of or failure to occupy school land purchased under the laws in force prior to April 19, 1901 (Gen. Laws 1901, p. 292), would not ipso facto work a forfeiture of such purchase, but to effect this purpose it was necessary that affirmative action to that effect be taken by the Commissioner of the Land Office.</p> <p>2. —Same—Authority of Commissioner.</p> <p>The authority of the Commissioner of the Land Office to declare a purchase of school land forfeited because of abandonment, depends upon the existence of that fact. If the fact does not exist, the power does not exist.</p> <p>3. —School land—lienholder—Forfeiture.</p> <p>The act of the Commissioner of the Land Office in attempting to forfeit a purchase of school land cannot be binding and Conclusive upon one having a valid lien on such land prior to said attempted forfeiture.</p> <p>4. —Trespass to Try Title—Pleading.</p> <p>In trespass to try title, where the petition is in the statutory form, the general rule is that the plaintiff will be permitted to introduce any competent parol evidence necessary to establish his title without pleading the facts. It is otherwise when the plaintiff is seeking the enforcement of an equity which the rules of pleading require to be set up by special plea.</p> <p>5. —Same—Same.</p> <p>One suing in trespass to try title for school land the purchase of which the Commissioner of the Land Office unlawfully attempted to forfeit, need not plead fraud or mistake on the part of the Commissioner.</p>

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

<p>1.—Will—Construction.</p> <p>The provision in a will, “In case of the death of my wife, Mary Butler, and myself at the same time, I bequeath my estate as follows, viz., etc.,” when construed in the light of the entire will and all' the provisions therein, held to have reference, not to the act of dying, but to the state of being dead; not to the contingency of the testator and his wife dying at the same instant of time, but to the time when they would both be dead.</p> <p>2.—Same.</p> <p>The following rules should be observed in the construction of a will: (1) The intention of the testator expressed in the will, or clearly dedueible therefrom, must prevail, if consistent with the rules of law. (2) The presumption is that the testator .intended to dispose of his whole estate. And (3) the law prefers a construction which will prevent a partial intestacy if such construction can reasonably be given.</p>

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

<p>Appeal from the County Court of Upshur County." Tried below before Hon. M. M. Briggs.</p>

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

<p>1. —Life Insurance Policy—Interest of Beneficiary—Right to Divest Same.</p> <p>While it is true that in an ordinary life insurance policy the beneficiary named has a vested interest which the insured can not divest, still this rule does not obtain where the right to change the beneficiary or to assign the policy is expressly reserved to the insured in the contract of insurance.</p> <p>2. —Prescribed Form of Assignment.</p> <p>The forms prescribed in a policy of insurance for an assignment of the same or for a change in the beneficiary are intended for the protection of the insurer alone and may be waived by it, and therefore, in the absence of objection by the insurer, an instrument which clearly expresses the intention of the insured to assign the policy and change the beneficiary, although not executed in the prescribed form and manner, will be .enforced.</p>

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

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

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

<p>1. —Certiorari—Pleading.</p> <p>In a petition for certiorari it is not sufficient to state generally that injustice was done the petitioner; he must show the facts on which he expects to recover or defeat his adversary; he must also state the evidence in the Justice’s Court or so much thereof as to show that vital error was committed; and he is not excused from malting such showing by his excusable absence from the trial, when he was represented therein by counsel employed by him for that purpose.</p> <p>2. —Same—Amendment—Appeal.</p> <p>The petition for certiorari not being amendable, and being found on cross-assignment upon petitioner’s appeal to be insufficient, the Appellate Court will remand to the County Court with direction to dismiss the certiorari, without considering the errors assigned by appellant.</p> <p>3. —Offset—Liquidated Damages.</p> <p>Damages of ■ substantially the same nature as those claimed by plaintiff, and arising out of the same transaction, may be recovered in reconvention, though unliquidated.</p>

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

<p>Error from the Forty-fifth District Court, Bexar County. Tried below before Hon. J. L. Camp.</p>

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

<p>Trespass to Try Title—Trust Estate—Parties.</p> <p>Where the legal title is in the trustee and where the life or existence of the trust itself is not involved, and where no equity or defense against the beneficiary is set up by the defendant, the trustee may maintain a suit of trespass to try title for the protection of the trust estate, notwithstanding the beneficial ownership of another.</p>

<p>1. —Railways—Frightened Horse—Personal Injuries—Proximate Cause.</p> <p>In a suit against a railroad company for personal injuries caused by a horse becoming frightened at a car partially obstructing a street in a town, and running away, evidence considered, and held sufficient to justify the jury in finding that the defendant company was guilty of negligence in leaving the car in the street; that such negligence was the proximate cause of the runaway, and that plaintiff was not guilty of contributory negligence in driving a wild horse, or in supposing he could control the horse after it became frightened.</p> <p>2. —Contributory Negligence—Burden of Proof—Charge.</p> <p>On the issue of contributory negligence, a charge to the effect that unless contributory negligence is made to appear from the evidence of the plaintiff the burden is on the defendant to establish the same, held correct.</p> <p>3. —Damages—Double Recovery—Charge Condemned.</p> <p>In a suit for personal injuries a charge which authorized a recovery for the time plaintiff was confined and unable to work and also for his diminished capacity to earn money, without limiting the latter to the time succeeding the period of confinement, is erroneous as allowing a double recovery.</p> <p>4. —Expenses—Proof of Value.</p> <p>In a suit for personal injuries it is error to allow a recovery for expenses in the absence of proof of their reasonable value.</p>

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

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

<p>1. —Personal Injury—Passenger—Passing from Coach to Coach—Railway v. Overall, 82 Texas, 247, Distinguished.</p> <p>A passenger who for a proper purpose passes from one coach to another of a railway train while in motion does not assume the risk of having his fingers mashed in the door jamb by the negligent closing of the door by the train porter. The facts in the case of Texas & P. Ry. Co. v. Overall, 82 Texas, 247, are distinguishable from the case at bar, and the rule therein announced does not apply to this case.</p> <p>2. —Same—Damages, not Excessive.</p> <p>A verdict for $600 is not excessive where the evidence showed that as a result of the injury two of plaintiff’s fingers were stiff, crooked and tender one year and five months after the injury, that he lost three weeks from work and that his earning capacity was permanently impaired.</p>

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

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

<p>Appeal from the County Court of Rusk County. Tried below before Hon. W. C. Strong, Special Judge.</p>

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

<p>Carrier—Wrongful Delivery of Freight.</p> <p>In a suit against a railroad for the 'value of freight received by it and wrongfully delivered to one not the consignee, the fact that the person to whom the freight was delivered was a director in the consignee company, and had in his possession the bill of lading, the same not being endorsed by the consignee to the holder, was no defense."</p>

<p>1. —Suit for Rent—Res Adjudicata.</p> <p>Where by the terms of a rental contract concerning a storehouse the rent was payable monthly, and upon default in the payment of the rent for the first month the landlord sued the tenant and recovered judgment for the rent of that month, such judgment was not a bar to a suit for subsequent monthly instalments of rent, for the reason that the landlord’s suit was one based on the contract, and not for damages for breach of the contract.</p> <p>2. —Rent—Monthly Instalments—Remedies.</p> <p>Where by the terms of a rental contract the rent is payable in monthly instalments, upon default in the payment of the rent and abandonment of the premises by the tenant the landlord may either stand on the contract and sue for each month’s rent as it falls due, or he may sue once for all for damages for breach of the contract.</p>

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

<p>Appeal from the County Court of Tom Green County. Tried below before Hon, Milton Mayes.</p>

<p>1. —Statute of Frauds—Debt of Another—Consideration.</p> <p>The statute of frauds does not make void a promise not in writing to pay the debt of another when made upon a valuable consideration to the promisor.</p> <p>2. —Mechanic’s Lien—Fixing Under Statute—Constitution.</p> <p>Where no rights of an innocent purchaser intervene, the lien in favor of a contractor making improvements or repairs upon a building is given by the Constitution and need not be fixed by compliance with the statutory requirements as to filing contract or sworn account.</p> <p>3. —Same—Lost Contract.</p> <p>Where a written contract under which improvements have been made is lost, it would seem ' that an affidavit setting forth the terms of the contract and its loss, filed in lieu of the contract itself might be taken as a compliance with the statute fixing the lien by filing the contract.</p>

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

<p>1. —Practice—Ruling on Demurrer.</p> <p>Trial courts should rule on demurrers when presented' and before proceeding to hear evidence, but a failure to do so is not always reversible error.</p> <p>2. —Pleading—General Demurrer. ■»</p> <p>If the facts stated in a pleading show liability and there is a prayer for general relief a general demurrer should be overruled even though the pleader has mistaken his remedy. - ,</p> <p>3. —Agency—Evidence.</p> <p>Agency and the authority of the agent may be shown by circumstantial evidence. Acts of the agent in the matter of his employment before and after the date in question are competent evidence. Evidence considered, and held material and competent to show the fact and extent of agency.</p> <p>°4.—Tindings of Pact—Practice.</p> <p>A trial court can not be required to set out the evidence upon which he bases his findings of fact.</p>

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

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

Tried below before Hon. J. W. Patterson. The alleged defect in the acknowledgment of the wife, referred to in the opinion, will be found in the brief of appellee.

<p>1. —Deed—Delivery—Evidence.</p> <p>In trespass to try title, the issue being whether or not a deed under which plaintiff's claim had been delivered, it appearing that the grantor was dead and that the plaintiffs at the date of the deed were minors, testimony that the grantor during his lifetime said he intended to give and had given the plaintiffs the land in question, was admissible as against the objection that it was hearsay.</p> <p>2. —Same—Declarations—Disparagement of Title.</p> <p>Declarations of a deceased grantor in disparagement of his title are admissible as declarations against interest.</p> <p>3. —Same—Same.</p> <p>Declarations against interest made by one while in possession of land concerning his title to the land are competent testimony.</p> <p>4. —Testimony—Conclusion of Witness.</p> <p>A witness being asked the question, “Do you know why the deed to the plaintiffs was never delivered to the plaintiffs?” his answer, “The old man did not deliver the deeds to any of his children,” was properly excluded be- • cause a conclusion of the witness.</p> <p>5. —Improper Testimony—Harmless Error, When.</p> <p>The admission of improper testimony as to an uncontroverted fact is harmless error.</p> <p>6. —Delivery of Deed—Circumstantial Evidence.</p> <p>A constructive delivery of a deed may be established by the acts and words of the grantor, showing that he intended the title should pass to the grantee, and showing that after the execution of the deed the grantor treated and recognized the property as belonging to the grantee, even though the manual possession of the deed may have been retained by the grantor.</p> <p>7. —Erroneous Charge—Harmless Error.</p> <p>. An erroneous charge was harmless error when it applied to a state of facts or phase of the case which the jury by their verdict found did not exist.</p> <p>8. —New Trial—Newly Discovered Evidence.</p> <p>A party is not entitled to a new trial for the purpose of procuring evidence of the existence of which he was evidently informed .before the trial by depositions on file, but which he used no diligence to procure.</p>

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

<p>Appeal from the County Court of Hill County. Tried below before Hon. N. J. Smith.</p>