Volume 53 — Texas Civil Appeals Reports

<p>1. —Banks and Banking—Bill of Exchange—Acceptance.</p> <p>A written promise by the drawee to the drawer to accept an existing bill of exchange, is not binding on the drawee as an acceptance unless such promise was communicated to the holder or purchaser of the bill and formed an inducement to the purchase of the same. This has reference alone to written acceptances not written on the face of the bill.</p> <p>2. —Same.</p> <p>A bill of exchange was drawn by one bank upon another; the party who bought the bill, but who was not the payee in the same, presented it to the drawee for acceptance, and said bank issued a certificate of deposit in favor of the payee named in the bill; it was then noticed that the payee had not endorsed it; the cashier of the drawee wrote on the bill that, on return properly endorsed it would be credited to the payee, and returned the bill to the holder and owner of the same for the purpose of having him obtain the endorsement of the payee; the attention of the drawee’s cashier was then called to the fact that the bill was stamped “paid,” to which the cashier replied that no change was desired, that it was all right as the bill had already been credited to the payee. Held, the action of the drawee bank "was a valid acceptance of the bill both verbally and in writing.</p> <p>3. —Same—Bill of Exchange—Acceptance—Effect—Estoppel.</p> <p>The acceptor of a bill of exchange becomes the principal debtor and is ’ primarily liable for the payment of the same. He is estopped to deny, that he has funds of the drawer in his hands with which to pay the same.</p> <p>4. —Same—Same—Delay in Presentation.</p> <p>After a bill of exchange has been accepted by the party on whom it is drawn, delay in presenting the same for payment, short of the statute of limitation, will not affect the liability of the acceptor. The subsequent insolvency of the drawer is no defense.</p> <p>5. —Action—Venue—Parties—Bill of Exchange.</p> <p>If one who is a proper or necessary party defendant resides in the county in which the action is brought, then other interested parties who reside in other counties may be joined with him as defendants. An acceptor of a bill of exchange is at least a proper party to a suit upon the same against the drawer.</p> <p>6. —Suit by Trustee—Parties.</p> <p>In suits by or against a trustee for the recovery of trust property, the beneficiary is a necessary party.</p> <p>7. —Bill of Exchange—Consideration—Pleading.</p> <p>In a suit by one in the capacity of trustee against the acceptor and drawer of a bill of exchange after the bankruptcy of the drawer, it is necessary to allege and prove that the beneficiary obtained the bill of exchange for value and in good faith.</p> <p>8. —Same—Acceptance—Certification—Distinction.</p> <p>An acceptance of a check, draft or bill of exchange places the acceptor in the position of principal debtor but does not release the drawer; a certification of such paper makes the party certifying the same, the principal and only debtor.</p> <p>9.—Bill of Exchange—Ownership—Venue.</p> <p>The purchaser of a bill of exchange remains the owner of the same until it is delivered to and accepted by the payee and, hence, may maintain an action upon the same against the drawer and acceptor in the domicile of either.</p> <p>10. —Evidence—Hearsay—Conclusion of Witness.</p> <p>In a suit against an insolvent drawer of a draft and the acceptor of the same, it was error, because hearsay and involving a conclusion of the witness, to permit the plaintiff to testify, in substance, that the cashier of the insolvent drawer told the plaintiff that he (the cashier) had heard from the bank on which the draft was drawn, and that it had been “arranged,” from which the witness understood the cashier to mean that the accepting bank had done as the plaintiff requested.</p> <p>11. —National Bank—Insolvency—Authority of Bank Examiner.</p> <p>In a suit against a national bank as the acceptor of a draft drawn by another national bank which afterwards became insolvent and was taken charge of by a bank examiner, a telegram from said examiner to the accepting bank to withhold payment of outstanding drafts, was properly excluded. Such evidence could not affect the liability of the defendant bank.</p>

<p>Appeal from the County Court of Leon County. Tried below before Hon. Robert J. Thorne.</p>

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

<p>Appeal from the County Court of Jefferson County. Tried below before Hon. Jas. A. Harrison.</p>

<p>Appeal from the County Court of Hardin County. Tried below before Hon. H. N. Vickers.</p>

<p>Trade Name—fraudulent Imitation—Evidence.</p> <p>Plaintiff and defendants were engaged in the same business in the same city; plaintiff advertised his business, especially in the telephone directories, as “C. C. Williams, Lone Star Moving Line,” and “White Star Line (C. 0. Williams, Prop.) ;” the defendants advertised their business through the same medium, as “S. Williams, Moving and Storage,” and “White Line Moving Company, S. Williams, Proprietor;” it was shown that there was no person by the name of 'Williams connected with the business of the defendants. In an action by the plaintiff to enjoin the defendants from the use of the name “Williams” in connection with their business, on the ground that same was fraudulently intended to and did in fact deceive the public and divert plaintiff’s business, evidence considered, and held sufficient to authorize the injunction prayed for.</p>

<p>1. —Railroad—Duty to Keep Lookout—Injury to Infant—Charge.</p> <p>While it is the duty of employees of a railway company in operating a train to keep a lookout for the safety of persons upon or approaching a street or other public crossing, and a failure of duty in this regard whereby an injury occurs would be actionable negligence, in an action for personal injuries to. an infant by the backing of a passenger train while at a station, evidence considered, and held insufficient to show any duty resting upon the railroad employees to discover the dangerous position of the child before it was injured, and hence a charge submitting to the jury as an issue of negligence the failure of the employees to discover it, was reversible error.</p> <p>2. —game—Personal Injuries—Duty and Liability Reciprocal.</p> <p>To justify a recovery against a railroad company for personal injuries the facts must show the existence of a duty upon the part of the railroad company to the person injured; if no such duty is shown, there can be no negligence, and being no negligence, there can be no liability.</p>

<p>Appeal from the District Court of Bosque County. Tried below before Hon. O. L. Lockett.</p>

<p>1. —Appeal—Brief—Reference to Record.</p> <p>Assignments of error will not be considered when they consist of references to bills of exception to be found in the record and when examination of the record fails to identify with certainty the bills referred to, or when the assignments as they appear in the brief are not true copies of the assignments as they appear in the record.</p> <p>2. —Shipment of Cattle—Damages—Evidence.</p> <p>In a suit against a railroad company for damages to a shipment of cattle there being proof before the jury of the price per cwt. for which the cattle sold, but. no evidence as to the total weight of all the cattle, it was permissible for the plaintiff to testify as to the amount he received as the proceeds of the sale of the cattle for the purpose of enabling the jury to ascertain the total weight of the cattle.</p> <p>3. —Same—Depreciation in Price—Evidence.</p> <p>In a suit for damages to a shipment of cattle, evidence considered, and held sufficient basis for a finding by the jury of the amount of damages by reason of depreciation in price.</p>

<p>1. —Railway—Negligence—Trespasser—Failure to Discover,</p> <p>A railway company may be held liable for negligence in failing to keep a proper outlook and discover the presence of one run over and injured on their track, though the injured person was a trespasser and not at a crossing or frequented place, where he was not guilty of contributory negligence, being too young to be charged therewith from the fault of trespassing.</p> <p>2. —Same—Signals—Person Not on Crossing.</p> <p>Failure to give the signals required by statute on approaching a highway crossing is not negligence in law as to a person 'injured on the track at another point; but may, as to such person, constitute negligence in fact. See charge held to properly submit such negligence as a question of fact and to be justified by the evidence considered,</p> <p>3. —Proximate Cause—Charge—Omission.</p> <p>In a charge submitting contributory negligence, the fact that it was made a defense if proximately contributing to cause the injury when there was no doubt that such negligence, if shown, was proximate, was not affirmative error, but mere omission, not ground for reversal in the absence of a requested charge supplying instruction on the theory omitted.</p> <p>4. —Contributory negligence—Child on Track—Charge.</p> <p>A requested instruction holding a child seven years old, injured while trespassing on a railway, to have been guilty of contributory negligence if of “sufficient mental capacity to realize the danger of being on the track,” held properly refused, in view of the form of defendant’s pleading, the other instructions given, and the evidence bearing on the issue.</p>

<p>1. —Bailroads—Speed of Trains—Negligence, when.</p> <p>A railroad company may have the abstract right to run its trains over a particular portion of its track at such speed as it desires, but if it runs faster than a person of ordinary care and prudence would have run it under like circumstances, and personal injuries result to its employes, it will be responsible for the damages.</p> <p>2. —Same—Negligence—Damages—Concurring Causes.</p> <p>If a carrier is negligent in two particulars and neither act alone is sufficient to cause an injury, but both, acting concurrently, are the proximate cause of an injury, the carrier is liable.</p> <p>3. —Trial—Omission in Charge—Practice.</p> <p>In the absence of a requested charge supplying an omission in the main charge, an appellant cannot complain that said charge was not as full and specific as it should have been.</p> <p>4. —Personal Injuries—Damages—Prospect of Promotion—Evidence.</p> <p>In a suit by a brakeman against a railroad company for damages for personal injuries, where it appeared that the plaintiff before the injury was competent to discharge the duties of a conductor and was in the line of promotion, it was not error to permit the plaintiff to testify as to the amount earned by a conductor, as bearing upon the question of damages.</p>

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

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

<p>Receivership—Appeal—Statute Construed.</p> <p>Under the provisions of article 1383, Sayles Civ. Stats., no right of appeal is given from an order of a judge made in vacation refusing to vacate a receivership. Appeal lies only from an order appointing a receiver.</p>

<p>1. —Insurance—Building—Realty or Personalty—Total Loss—Pleading.</p> <p>An action to recover on an insurance policy upon a residence described therein as having a foundation of rock and cedar sufficiently shows the building to be attached to the soil and to be prima facie realty, for which, in case of total loss, a liquidated demand for the amount of the insurance arises under the statute (Rev. Stats., art. 3089) even though it should be held that the insured had the burden of alleging and proving a building to be realty in order to bring the ease within the statute, which is questioned.</p> <p>2. —Insurance—Warranty.</p> <p>An agreement by the insured to keep metal under the stoves in a house was not a warranty, and failure to comply did not avoid the policy.</p> <p>3. —Briefs—Proposition.</p> <p>Errors, to require consideration, must be presented by sufficient propositions in the brief.</p>

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

<p>1. —Homestead—Abandonment.</p> <p>The homestead was not abandoned by the surviving husband by his lease of the premises for a term of five years and removal to another residence furnished as a part of the rental price, in the absence of other evidence of an intention not to return and occupy it.</p> <p>2. —Same—Partition.</p> <p>The homestead, though upon land partly community and partly the separate property of the deceased wife, was not subject to partition between her heirs until the husband chose to abandon his homestead rights.</p>

<p>1. —Title by Limitation—Ten Years—Intent—Metes and Bounds.</p> <p>One who designates a tract of 160 acres of land by metes and bounds out of a larger tract belonging to another, and enters into possession of the same with the avowed intention of acquiring title thereto by limitation, and continues in possession of the same for ten years under the conditions prescribed by the statute, will acquire title thereto, under said statute; and neither the fact that he is the owner of an adjoining tract, nor that the tract so occupied is carved out of a-larger tract, will affect his right.</p> <p>2. —Same—Cases Distinguished and Approved.</p> <p>Evidence as to title by limitation under the ten years statute, considered, -.and distinguished from Bracken v. Jones, 63 Texas, 184, and Tucker v. Smith, 68 Texas, 473.</p> <p>3. —Same—‘Evidence—Declaration of Occupant as to Boundaries.</p> <p>The declarations of an occupant of land as to the boundaries to which he claims, are competent evidence as verbal parts of his aot of occupancy, serving to give it an adverse character.</p> <p>4. —Evidence—Cross-Examination of Witness—Waiver.</p> <p>A party who, on cross-examination of a witness, brings. out in detail evidence which he objected to on direct examination of the witness, thereby makes it his own evidence, and cannot complain of'its admission in the first instance. '</p> <p>5. —Title by Limitation—Occupation—Charge Approved.</p> <p>A charge upon -the character of possession necessary to acquire title to land under the tpn years statute of limitation, considered and approved. It is only necessary that the adverse occupant should cultivate, or use, or enjoy the land; these acts need not all concur.</p> <p>6. —Trial—Remarks of Judge—Bill of Exception.</p> <p>When a bill of exception to the admission of evidence complains only incidentally of a remark of the judge concerning the evidence, the bill is not a sufficient basis for an assignment of error as to the remark of the judge.</p> <p>7.—Title by limitation—Evidence.</p> <p>Evidence considered, and held sufficient to support a plea of title under the ten years statute of limitation.</p>

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

<p>1. —Vendor and Vendee—Default in Payment—Suit to Rescind—Offer to Perform.</p> <p>A rescission of an executory contract ■ for the sale of land, for default in the payment of the balance of the purchase money, will be denied the vendor, unless strong countervailing equities exist in his favor, when a part of the purchase money has been paid by the vendee or permanent and valuable improvements have been placed on the land by him or by purchasers under him, and the vendee brings into court after suit filed and offers to pay the balance of the purchase money due, with costs of suit.</p> <p>2. —Same—Cases Followed and Discussed.</p> <p>The case of Moore v. Giesecke, 76 Texas, 543, followed. Fristoe v. Blum, 92 Texas, 76; Waggoner v. Flack, 92 Texas, 663, and Standifer v. Wilson, 93 Texas, 232, discussed.</p> <p>3. —Vendor and Vendee—Specific Performance—Equities of Vendor—Pleading.</p> <p>An executory contract for the sale of farm land expressly gave the vendor the right to retain possession of the land until the purchase money was paid in full; in a suit by the vendor for a rescission of the contract, because of the refusal of the vendee to pay the balance of the purchase money, the vendee upon the eve of trial tendered the balance due, and prayed for specific performance of the contract of sale; the vendor answered that after default by the vendee in the payment of the money and an express refusal by him to perform the contract, he (the vendor) had, at great expense, put the land in cultivation and planted a crop thereon which was then growing. Held, first, that such pleading of his equity by the vendor was sufficient, and the court erred in sustaining an exception to the same; and, secondly, that the vendor’s equity was such as required protection by the decree of the court, and that a decree for specific performance of the contract with immediate delivery of possession of the land, together with the crop growing thereon, to vendee, would have been unjust.</p> <p>4. —Vendor and Vendee—(Rescission—Sale by Vendee—Immaterial Testimony.</p> <p>Testimony as to the profit received by a vendee of land upon a sale by him to a third party, is irrelevant and immaterial in a suit by the first vendor to rescind the contract of sale for the nonpayment of the purchase money.</p> <p>5. —Same—Samé—Broker—Good Faith.</p> <p>After a broker, or land agent, had effected a sale of land he acquired from the vendee an interest in the land and assumed a proportionate part of the unpaid purchase money; in a suit by the original owner against the vendee and the broker to rescind the sale because of default in paying the balance of the purchase money, it was not reversible error to permit the broker to testify that he made the sale for the plaintiff in good faith.</p> <p>6. —Same—Same—Immaterial Testimony.</p> <p>Where, in a suit to rescind an executory contract for the sale of land for default in the payment of the purchase money, the vendee tenders the money in court and asks for specific performance of the contract, testimony that the vendee obtained the money from a party to whom he had bargained and expected to sell the land, was irrelevant and immaterial.</p> <p>7. —Same—Same—Pleading—Becree.</p> <p>In an action for the rescission of an executory contract for the sale of land the defendant paid into court the balance of the purchase money due the plaintiff, and prayed for general relief; there was a general verdict for the defendants. Held, that under the pleadings the court was authorized to render a decree that the clerk pay over to' plaintiff the money tendered by defendant; that the plaintiff take nothing by his suit for rescission; that defendant recover of plaintiff the title and possession of the land, and that plaintiff recover of defendant the costs incurred to the date when the money was deposited in court, and that defendant recover the costs thereafter incurred.</p>

<p>1. —Fire—Communication from Private Premises—Liability.</p> <p>Every person has the right to kindle fire on his own land for any lawful purpose, and if he uses reasonable care to prevent its spreading and doing injury, to the property of others, no just cause of complaint can arise in case of injury; but, though the time may be suitable and the manner prudent, if he is guilty of negligence in taking care of the fire, and it spreads and injures the property of another in consequence of such negligence, he is liable in damages for the injury done. Rule applied in a suit for the value of grass and timber destroyed by fire which spread from the premises of another.</p> <p>2. —Same—Burden of Proof.</p> <p>In a suit for the value of grass and timber destroyed by fire communicated from the premises of another, the burden of proof is upon the plaintiff to show negligence on the part of the defendant or party kindling the fire. The rule is otherwise in case of fire communicated from locomotives.</p> <p>3. —Damages—Evidence—Harmless Error.</p> <p>Where, in a suit for damages, the verdict of the jury is for the defendant, the rulings of the trial court in the admission of evidence affecting only the amount of damages to which the plaintiff would be entitled, cannot constitute reversible error.</p> <p>4. —Same—Same.</p> <p>Evidence considered, and held to warrant a verdict for the defendant in a suit for damages to plaintiff’s grass and timber by fire set out upon and which spred from defendant’s premises.</p>

<p>1. —Statement of Facts.</p> <p>A copy, instead of the original statement of facts, cannot be considered as a part of the record on appeal in the absence of an agreement of the parties.</p> <p>2. —Note—Corporation—Indorsement.</p> <p>An assignee may recover on a promissory note given to a corporation, though the indorsement transferring it is not under the corporate seal. Under our statute no written indorsement is necessary.</p> <p>3. —Charge—Statement of Facts.</p> <p>Alleged errors in the charge of the court cannot be considered in the absence of a statement of facts.</p>

<p>1. —Appeal—Statement of Facts not' Filed—Practice.</p> <p>A court of Civil Appeals will on its own motion strike out a statement of facts which does not appear to have been filed in the trial court.</p> <p>ON REHEARING.</p> <p>An assignment of error should observe the distinction between the insufficiency of the findings of fact by the trial court to support the judgment, and the insufficiency of the evidence to support the findings of fact.</p> <p>3. —Administration—Community Survivor—Devastavit.</p> <p>In a suit by the heirs of the wife against the bondsmen of the husband as community administrator for devastavit by the husband, the fact that there were outstanding valid community debts in excess of the liability of the bondsmen for the -alleged devastavit, would be no bar to a recovery by the heirs, administration upon the community estate of the husband and wife being still open. °</p> <p>4. —Same—Liability of Bondsmen.</p> <p>Bondsmen of the husband as community administrator are not relieved from further liability when, after the death of the husband, an administrator of the community estate of the husbanu and wife receives and inventories one-half of the property in kind belonging to such community estate at the date of the qualification of the husband as survivor.</p>

<p>Appeal from the District Court of Hemphill County. Tried below before Hon. H. G. Hendricks.</p>

<p>Final Judgment—Appeal—Oral Testimony.</p> <p>A judgment in a Justice Court recited that “the writ of attachment should be quashed, and that the cause should be dismissed from the docket, therefore it is ordered, adjudged and decreed by the court that said bond is insufficient, that the writ of attachment may be quashed and that said cause be dismissed from the docket, and that plaintiff pay all costs of this suit, for which let execution issue.” Held, when tested by its own recitals, said judgment finally disposed of the controversy by dismissing the cause from the docket and would therefore support an appeal to the County Court. The oral testimony of the justice of the peace was not admissible to prove that he intended by said judgment only to quash the attachment.</p>

<p>Appeal from the County Court of Scurry County. Tried below before Hon. C. R. Buchanan.</p>

<p>1. —Appeal—Motion, to Strike Out Statement of Pacts.</p> <p>Where a very substantial portion of a statement of facts is in the form of questions and answers, such statement will be stricken from the record upon motion of appellee because in violation of the statute.</p> <p>2. —Slander—Privilege.</p> <p>When slanderous words were uttered to the plaintiff in -the presence of others upon an occasion when the plaintiff sought from defendant a retraction of a prior slander, the contention that the words spoken under such circumstances were privileged, cannot be sustained. The rule of privilege under such circumstances does not inure to the benefit of one who is himself the author of the slander.</p>

<p>1. —Evidence—Boundary—Bight of Way.</p> <p>When, by an examination of the records, it could not be told where the lines of the right of way of a railway company were on the ground, the testimony of a surveyor who had run the lines as to where they were located was admissible over objection that the records were the best evidence. '</p> <p>2. —Same—Fire—Escape of Sparks from Engine.</p> <p>Where, in a suit against the railway company for damages by fire set out by its engine, the company introduced testimony that the engine had been throwing sparks ten days before the fire but had been repaired and had not thrown sparks since, and "there was no testimony as to how repairs were made, testimony that within the ten days other fires were set out at the same place by the engine, was admissible in rebuttal.</p> <p>3. —Fire—Prima Facie Case—Burden of Proof.</p> <p>In a suit against a railway company for damages by fire set out by its engine, proof by the plaintiff that the injury complained of was caused from fire set but by sparks from the engine while being operated upon the road, constitutes a prima facie ease, and, if not rebutted, entitles the plaintiff to recover; and the court may so instruct the jury.</p>

<p>1. —Measure of Damages—Death.</p> <p>A charge allowing a mother to recover for death of the son the present cash value of whatever pecuniary benefit she had a reasonable expectation of receiving during her lifetime from the son had he lived, could not have misled the jury to render a verdict greater than, her life expectancy, and this she was entitled to recover.</p> <p>2. —Same—Pecuniary Benefits.</p> <p>Where, in a suit by the wife, minor children and mother for the death of deceased, the recovery was limited to the present value of the pecuniary benefits plaintiffs had an expectancy of receiving had deceased lived, an instruction that by pecuniary benefits as used is meant not only money but everything that can be valued in money, and in case of the minor children it includes the reasonable pecuniary value of the nurture, care and training, if any, the jury may believe from the evidence they would have received had he lived, was hot error, considered in connection with the succeeding instruction not to allow anything for grief or sorrow, or for loss of deceased’s society, affection or companionship.</p> <p>3. —Death—Damages—V erdict.</p> <p>Verdict, in a suit by the wife, minor children and mother for the death of the husband, father and son, in the sum of seventeen thousand five hundred dollars, held not excessive. .</p>

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

<p>Heading—Want of Consideration—Fraud—Payment.</p> <p>Plaintiff, retiring from a mercantile company, leased to defendant for one year Ms half interest in the premises occupied by the concern and also the use of his interest of $500 in the firm. In a suit to recover the amount so loaned a demurrer was improperly sustained to pleas representing the defenses following:</p> <p>(1) Want of consideration in that plaintiff had no interest in the firm.</p> <p>(2) Fraud in that defendant was induced hastily to sign the contract upon representation that it was merely a lease of the premises.</p> <p>(3) Payment in merchandise accepted by plaintiff in satisfaction for his interest. Though some items bore date prior to the written lease (which was the ground of the exception) this did not subject the plea to demurrer as a whole; and in the absence of special exception the plea might be construed as showing an agreement to offset a former debt by plaintiff against the claim sued on.</p>

<p>1. —Evidence—Deed—Description of Land—Identity.</p> <p>In a suit involving the title to a small strip of land of a league and labor survey, a deed describing the land" conveyed as 975 acres being the undivided interest of the vendor in the survey less 700 acres previously sold out of the survey, was admissible when offered as a link in the chain of title to the strip, over objection that the description shows that 700 acres had been sold off and there was nothing to show what 700 acres or that it was not the part in controversy, on assurance from counsel that evidence would be introduced later tending to make certain the land conveyed by the deed.</p> <p>2. —Same.</p> <p>To show title to the strip the party offering the deed was required to show that it was not a part of the 700 acres previously sold off; and a prior deed conveying 640 acres of the survey, standing alone, was insufficient for such purpose because it left 60 acres unaccounted for.</p> <p>3. —Same—Recitals in Deeds.</p> <p>A recital in a deed that “the town of North Uvalde is laid off” upon the land conveyed, simply showed that as between the grantor and grantee the land conveyed was understood to cover the town site, and was not evidence that the latter was situated upon that portion of the survey, with respect to one not a party to the deed.</p> <p>i.—Trespass to Try Title—Burden of Proof.</p> <p>In trespass to try title the plaintiff must affirmatively show title to the very land sued for, and the rule applies though a county is the defendant and is claiming only some roadways that it has acquired by prescription or limitation.</p> <p>5. —Same—Proof of Title.</p> <p>In trespass to try title a defendant may fail in establishing a title by limitation or prescription, and still the plaintiff cannot recover unless his title is affirmatively disclosed.</p> <p>6. —Roads—Commissioners’ Courts—Powers.</p> <p>Roads not acquired under the provisions of the statute are not subject to said provisions, and the Commissioners’ Court has the power to discontinue them.</p> <p>7. —Same—Changes.</p> <p>Where a road not acquired under the statute ran through land which was divided into lots and streets to form a town site, an order of the Commissioners’ Court permitting the owner of the fee to conform the road to follow the streets, all streets to be cleared, graded and put in first-class condition, was valid, and not conditional in the sense that it was not to have effect until the new routes were cleared and graded.</p>

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

<p>1. —Contract—Agency—Sale of Land.</p> <p>Where no terms were specified in the contract for the sale of land by the agent except that the owner was to receive a net sum and the agent was to receive the amount above that sum as commission, an offer by the agent to sell the land alone for a less sum which contemplated the payment to the owner of the agreed net price, the agent to take the improvements as commission and make up the difference, was no departure from the terms of the contract.</p> <p>2. —Same—Cancellation—Time of Performance.</p> <p>The agent having the exclusive right to sell property of the' principal and the time within which he was to have such exclusive right being extended until he could get a certain party to agree and bind himself to buy, the principal had no right to cancel the contract without the agent’s consent, so long as the negotiations were going on between the agent and party contemplated with the prospect of an eventual sale, within reasonable limitations as to time.</p> <p>3. —Same—Delay in Performance—Reasonable Time.</p> <p>Ordinarily what is a reasonable time within which an act should be done is a question for the jury; but where no inference of unreasonable delay can be properly drawn from the evidence by a reasonable mind, there is no issue of fact for the jury.</p>

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

<p>1. —Master and Servant—Duty to Give Warning.</p> <p>The general principles governing the issues as to experience and knowledge of the servant in regard to dangers of the service and the duty of the master with respect to giving the servant warning of dangers, stated and discussed.</p> <p>2. —Same—Facts.</p> <p>In the ease of an employe in an oil mill injured by having his hand caught in revolving cog wheels while oiling machinery, the servant being twenty-seven years of age, one who had worked at the carpenter’s trade and in gins and mills before, and the machinery being a common mechanical device the danger from which was open to the observation of men of common intelligence, evidence considered and held insufficient to justify the submission of the issue as to the master’s duty to warn the servant of the danger.</p> <p>3. —Servant’s Contributory Negligence—Charge.</p> <p>Where a servant was injured in oiling machinery, steadying himself by the support of a timber not placed there for that purpose, which giving way caused his hand to be caught in revolving cog wheels, a charge which relieved him from contributory negligence if he had first tested the support to see if it was secure was incorrect, and a requested instruction properly submitting the issue should have been given.</p> <p>ON MOTION FOB REHEARING.</p> <p>4. —Negligence—Assumed Risk—Charge.</p> <p>A requested charge holding defendant liable for negligence in leaving an unsecured piece of timber in such position that an employe might rely on it for support in oiling machinery, where a servant, without contributory negligence, was injured in so doing, was incorrect in ignoring the issue as to the effect of knowledge by the servant of its insecurity.</p> <p>5. —Dangers of Service—Skill and Knowledge Required of Servant,</p> <p>Evidence of the high degree of knowledge of machinery necessary on the part of a servant to properly oil' it, held not to require the inference that the same knowledge was necessary in order to appreciate the danger of being caught in the cog wheels while so doing.</p>

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

<p>1. —Waters—Diversion of Surface Water—Damnum Absque, Injuria.</p> <p>When the adjoining proprietor, in the ordinary use of his property, diverts the surface water to and upon the land of his neighbor, he is not liable, and the injury that results therefrom is damnum absque injuria.</p> <p>2. —Same—Overflow—Obstruction of Waters in Streams.</p> <p>The owner of land has no right to obstruct the flow of water in a stream by building a dam or embankment on his land thereby causing it to overflow upon the land of his neighbor, although the immediate cause of the overflow be due to ordinary rainfall.</p> <p>3. —Same—Pleading—W atercourse.</p> <p>A statement filed in Justice Court that defendant constructed a dam across a swag which acted as an outlet for the natural flow of surface water for several miles above without having sufficient openings to allow the water to pass through, and that the water thus obstructed flowed back upon plaintiff’s land, was sufficient to raise the issue of obstruction to a watercourse.</p> <p>4. —Pleading—Justice Courts,</p> <p>The form in which a party to a suit in the Justice Court may state his cause of action, is of no importance. If from all that is stated, written or oral, the court can ascertain what right the plaintiff asserts," the pleading will be held sufficient.</p> <p>5. —Overflow—Water Course—Damages.</p> <p>One constructing a dam on his own land across a well defined drainage way containing running water for six months in the year and acting as an outlet for the natural flow of surface water for several miles above and thus causing the water to overflow the land of another, was liable for the resulting damages.</p>

<p>1. —Homestead—Designation of Homestead—Statute Construed.</p> <p>The purpose of the statute providing how the husband as head of the family shall proceed in order to fix the homestead character upon that portion of the larger tract of land selected by him for his homestead, is to provide a means by which the homestead right may be fixed as against creditors of the husband, and is not a limitation upon his power to otherwise designate the portion which he desires to hold for homestead purposes. The only limitation upon his right in this regard is-that he cannot by such designation exclude his place of residence. Bevised Statutes, arts. 2404, 2405.</p> <p>2. —Same—Mortgage.</p> <p>The right of the husband as head of the family to designate the rural homestead, may be exercised by the execution of a mortgage upon a portion of the excess in acreage of the larger tract which does not include his residence or any of his improvements; and when this is done the right to assert homestead'rights against the mortgage is barred.</p>

<p>1.—Master and Servant—Negligence—Appliances—Place to Work.</p> <p>It is the duty of the master to exercise ordinary care to provide the servant with reasonably safe places to work and reasonably safe tools and appliances with which to perform the work, and a failure to do this makes the master liable, provided the servant’s contributory negligence or assumed risk does not intervene.</p> <p>2. —Same—Charge—Weight of Evidence.</p> <p>Where the court gave special charges requested by the railway company on the issues of contributory negligence and assumed risk, which were the only' defenses pleaded, an instruction that railway companies are required to exercise ordinary care to provide for their employes reasonably safe places in which to work and reasonably safe tools and appliances with which to perform their work and a failure to do so renders them liable for such damages as proximately result from such failure, was not subject to objections that it ignored the issues of contributory negligence and assumed that the servant was not guilty of negligence and did not assume the risk, and made the company an insurer of the safety of the place and appliances.</p> <p>3. —Negligence—Charge.</p> <p>Charge, in a suit wherein a railway company was charged with negligence in failing to provide a cotter key for the king pin which fastened the draw bar to the engine, causing the cars to become uncoupled from the engine and causing injuries to the fireman resulting in death, held not to assume that the key was not provided, or that the defendant failed to exercise due care.</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 Bed Biver County. Tried below before Hon. Ben H. Denton.</p>

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

<p>1. —Railroad—Killing Live Stock—Negligence—Pleading and Proof.</p> <p>In a suit in a Justice Court for the value of an animal killed by a railway train, evidence that the engine was equipped with an oil headlight instead of an electric headlight was not admissible under a pleading charging negligence on the part of the defendant in failing to keep a proper lookout.</p> <p>2. —Same—Negligence—Injury—Causal Connection—Proof.</p> <p>Even though it was shown that a railroad engineer was guilty of negligence in running his train at night through a town at a high rate of speed and in failing to keep a proper lookout, a judgment against the railroad company for killing plaintiff’s horse on the occasion in question could not be sustained in the absence of evidence that said negligence was the proximate cause of the death of the animal. The causal connection between negligence and an injury must be shown by evidence, it cannot be presumed.</p>

<p>1. —Injunction—Bawdy House—Description.</p> <p>In a petition for injunction to restrain the defendant from keeping a bawdy house, the house was described as “being situated in the town of G. on the north side of West Church Street, in a locality generally known as Silver City.” It was further alleged that plaintiff was unable to give a better description of the house. Held, an exception to the petition on the ground that the description was insufficient, was properly overruled.</p> <p>2. —Injunction—Pleading—Proviso in Statute.</p> <p>Where there is an exception embraced in the enacting clause of a statute, one suing under the statute must in his pleading negative such exception. But a proviso contained in the same clause or in a subsequent clause of a statute is a matter of defense and need not be negatived by the plaintiff seeking relief given by the statute. This rule applied in a suit to enjoin the keeping of a bawdy house under arts. 362a and 362b of the Penal Code. (Gen. Laws, 1907, p. 247.)</p> <p>3. —Same—Bawdy Houses—Constitutionality of Statute.</p> <p>Article 362a, Penal Code, providing for the suppression of bawdy houses by injunction, is not in violation of art. 3, sec. 35 of the Constitution providing that no bill shall contain more than one subject, which shall be expressed in the title. The fact that by the terms of the title of the Act by which said article was incorporated in the Code, the right of injunction in such cases is available throughout the entire State, while the body of the Act excludes its application in certain cities under certain contingencies, does not render the Act repugnant to said article of the Constitution.</p> <p>4. —Same.</p> <p>The Act of the Thirtieth Legislature providing for the suppression of bawdy houses by injunction, is not violative of sec. 35, art. 3, of the Constitution, on the ground that “it attempts to amend at the same time the criminal laws of the State and the civil laws of the State; attempts to change the definition of disorderly houses; to establish and provide a punishment for the offense of procurer; and to enlarge the limits in which an injunction can be issued.”</p>

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

<p>1. —Telegraph Company—Negligence—Buie of Damage.</p> <p>Special damages recoverable for negligent delay in the delivery of a telegram are limited to such as may reasonably be presumed to have been in the contemplation of both the parties to the contract at the time it was made.</p> <p>2. —Death Message—Insufficient Notice.</p> <p>A telegram in the following words, to wit: “Come at once” is insufficient in and of itself to charge the telegraph company with notice that mental distress would possibly or probably result to the addressee from a failure to promptly transmit and deliver the message.</p> <p>3. —Same—Duty to Inquire, When.</p> <p>It is the duty of a telegraph agent to make inquiry as to the purpose of a telegram only when the general nature of the message is plainly disclosed by its terms or otherwise, and some collateral fact, such as the relationship of the parties, without which the damages claimed would not likely result, is not shown.</p> <p>4. —Same—Insufficient Evidence.</p> <p>In an action against a telegraph company for damages for mental suffering resulting from negligent delay in the delivery of a death message, evidence considered, and held insufficient to charge the defendant with notice of such special damages.</p>

<p>1.—Conditional Lease—Sale of Land.</p> <p>A contract releasing P. from liability on previous transactions was conditioned on his making sale of a certain farm to R. The farm was sold under a trust deed to satisfy an incumbrance, and being bought by S. was sold by him to R. In the absence of evidence that such sale was made at the instance of P. for the purpose of carrying out his contract with R. or that P. adopted and ratified such sale to R. through the.trustee and S., no release of his liability was effected by such transactions.</p> <p>¡2.—Contract—Partnership.</p> <p>A contract purporting to be by a partnership and to be signed by a member of the firm, providing for a conveyance of land to a member not signing it or to such person as he should direct, for a consideration to be secured by vendor’s lien notes or his personal note, could not be construed as a mere proposition or option to be submitted to and approved by him before it became binding.</p> <p>3.—Agency—Ratification.</p> <p>Under a contract by which land was to be conveyed to S. or such person as lie should direct, the designation of the grantee could be made by S. by an agent; but the ratification of such contract so as to bind S. who had not signed it, if made by an agent, must be by one having specific authority to ratify.</p> <p>4. —Partnership—Contract—Conveyance of Land.</p> <p>A contract in the name of a partnership and binding them to convey land was ineffective as to partners not signing it, where the business of the firm was discounting commercial paper and loaning money, but not the buying or selling of land.</p> <p>5. —Same.</p> <p>A contract by one partner in the name of the firm by which it was released from no existing obligation, but assumed others, and which involved - the purchase of land and conveyance of land by the firm, was not binding upon partners not signing or personally ratifying it.</p> <p>6. —Evidence—Pleading in Another Suit.</p> <p>In proof of the fact that a certain person was a member of a defendant ■ partnership, the pleadings in a' suit against such firm by a third party, charging him as a member, and the answer, containing a general denial but no sworn plea, denying the partnership as alleged, were not admissible. The rule taking such partnership as admitted unless denied by verified plea applied only for the purpose of that case.</p> <p>7. —Evidence—Irrelevant Transaction.</p> <p>Proof that defendant had wrongfully converted property in a transaction not in issue in the case, of allegations in actions by other parties charging defendant with wrong, and of transactions with third parties, held immaterial and prejudicial.</p> <p>8. —Measure of Damages—Charge.</p> <p>Instructions as to measure of damages for breach of contract held erroneous.</p> <p>9. —Damages—Verdict.</p> <p>A verdict which finds damages at the rate of $5 per acre for failure to convey land, is insufficient without specifying its acreage. The court cannot look to the evidence, though undisputed, to complete the verdict.</p>

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

Tried below before Hon. Paul D. Page. A former judgment of recovery by plaintiff was reversed on appeal and the cause remanded (91 S. W., 614), after questions certified therein had been answered by the Supreme Court (Aetna Ins. Co. of Hartford v. Brannon, 99 Texas, 391).

<p>Contract—Sale—Mistake.</p> <p>The sale of the property of an agency for handling beer by the agent company to the manager of its business included a carload of bottled beer then on hand, valued at its cost, $1,104. A bank, creditor of the beer company, was a party to the contract, by which it received the consideration for the sale. The manager had personally advanced $600 of the cost of this beer, which fact was overlooked in the sale, and he sued the bank to recover that amount on the ground that by mistake his own property, to that extent, had been included in the sale to him. Held that by such advancement he had not become part owner of the beer, but a creditor of the beer company to that amount; and that such mistake did not entitle him to a rescission of the sale or to recover such debt of the company to him from the bank.</p>

<p>Appeal from the County Court of Bexar County. Tried below before Hon. P. H. Schoolc.</p>

<p>Appeal from the 45th Judicial District, Bexar County. Tried below before Hon. J. L. Camp.</p>

<p>1. —School land—Contract to Procure Award.</p> <p>Evidence considered and held to show a contract by plaintiff with reference to school land, not only to dispose by litigation of the rights of an adverse claimant, but to procure for defendant an award of the same to defendant as a purchaser, which latter undertaking not being complied with, plaintiff could not recover the agreed compensation.</p> <p>2. —Same—Pleading.</p> <p>Where the suit was for agreed compensation for an undertaking to procure an award of school land to defendant, it was not admissible to introduce in evidence a deed from defendant to an adverse claimant of the land in compromise of their claims, as proof that an interest in the land had been obtained for defendant.»</p>

<p>1. —Evidence—Opinion—Reasonable Time.</p> <p>In an action for damages by delay of cattle in transportation, witnesses should not be allowed to testify what would be a reasonable time, or a reasonable time in the exercise of ordinary care by the carrier, for the transportation.</p> <p>2. —Weights of Cattle—Secondary Evidence.</p> <p>A witness who weighed cattle, noting weights which he knew to be correct on “scale tickets” of which he preserved a carbon copy, may testify to such weights, attaching a copy of the scale tickets to his deposition; the production of the originals, they being beyond the jurisdiction of the court was not necessary.</p> <p>3. —Written Document—Introduction of Part—Claim for Damage.</p> <p>Defendant having introduced a part of the written claim for damages submitted by plaintiff before suit, to show that the amount was materially less than that sued for, defendant was entitled to introduce the remainder of the document only so far as any part thereof bore on or qualified the inference sought to be drawn from that introduced.</p> <p>4. —Evidence—Market Reports.</p> <p>Reports of isolated sales of articles, not shown to be of the same kind and quality as those of which the market price is in issue, are inadmissible to establish that price, but admissible only to show, if that fact is contested, the existence of a market.</p> <p>5. —Same—Decline.</p> <p>Evidence of decline in the market price is inadmissible where the articles in question could not have reached market in time for the higher price.</p> <p>6. —Unloading Cattle in Transit.</p> <p>The proper time for resting and feeding cattle unloaded therefor in transit by rail is not limited to the five hours required by the Statute of the United States (Compiled Stats., U. S., 1907, Supplement, p. 918) but depends on the circumstances.</p>

<p>Appeal from the County Court of Hamilton County. Tried below before Hon. A. E. Scott.</p>

<p>1.—Damages—Proximate Estimate.</p> <p>It is not a sufficient reason for disallowing damages claimed that a party can state their amount only approximately; it is enough if from proximate estimates of witnesses a satisfactory conclusion can be reached.</p> <p>2. —Same.</p> <p>. In a suit for damages for negligent failure to deliver a telegram preventing a theatrical performance, the amount could be proximately estimated with reasonable certainty from proof of the number of tickets sold and the testimony of the manager of the opera house that from his experience of the attendance upon similar performances in his judgment he would have received - a certain amount if the performance had been given.</p> <p>3. —Same—Case Distinguished.</p> <p>Houston & T. C. Ey. Co. v. Hill, 63 Texas, 381.</p>

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

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

<p>1. —Jury—Sickness of Juror—Talesmen—Statute Construed.</p> <p>When, after a jury has been empaneled in a District Court but before the trial commences, one of the jurors becomes disabled by sickness from serving on the jury, the court has the power and it is its duty to require the parties to proceed to trial before the eleven jurors. There is no statutory authority for summoning talesmen to fill the panel in such case. Arts, 3221, 3224 and 3229, Dev. Stats., construed.</p> <p>2. —Trial—Requested Charge—Practice.</p> <p>When a party requests a number of special charges upon a certain group of facts, it is not incumbent upon the trial judge to select from among, them the one most favorable to the party requesting such charges; the giving of any ong of said charges would deprive the party of the right to complain of the refusal of the others, and this, though the charge given may be less favorable than said party would be entitled to on said phase of the case.</p> <p>3. —Master and Servant—Personal Injury—Warning by Master.</p> <p>When, in a suit for damages for personal injuries, it appeared from the evidence that defendant’s foreman warned the plaintiff in time for him to have removed his hand from the place of danger, and the plaintiff heard but failed to obey such warning and was injured, the court should instruct the jury that such warning would be a complete defense to plaintiff’s suit.</p> <p>4. —Charge—Submission of Issue—Undue Prominence.</p> <p>In an action for damages for personal injuries the court should not submit by separate charges the same group of facts as assumed risk and contributory negligence. By so doing undue prominence would be given to said facts.</p> <p>5. —Master and Servant—Defective Appliances—Charge.</p> <p>A servant is not required to exercise diligence to discover defects in appliances furnished by the master. Charge considered, and held subject to this objection.</p>

<p>1. —Suit—Failure to Prosecute—Practice.</p> <p>When the plaintiff fails to appear and prosecute his suit at the first term after the same was filed, the proper practice would be to dismiss the suit for want of prosecution, rather than to act on and sustain a demurrer filed by the defendant to the petition.</p> <p>2. —Same—Cross-Action—Notice.</p> <p>It was error for the court to consider and render judgment upon a cross-action filed by defendant on appearance day of the term of the court to which the case was returnable, when neither the plaintiff nor his counsel were present and they had no notice of the filing of such cross-action.</p> <p>3. —Pleading—General Demurrer—Rule.</p> <p>In passing upon a general demurrer every reasonable intendment arising upon the pleading excepted to should be indulged in favor of its sufficiency.</p> <p>4. —Same—Specific Performance of Contract.</p> <p>In an«action to enforce specific performance of a contract for sale of land, petition considered, and held not subject to general demurrer on the ground that it appeared therefrom that time was of the essence of the contract and that plaintiff had not complied with his part of the contract within the time stipulated therein.</p> <p>5. —Option—Contract to Buy—Distinction.</p> <p>Time, from the very nature of the - contract, is necessarily of the essence of a mere option, and the holder of the option must perform or offer to perform his part' of the contract within the limit of time stated therein in order to be entitled to a specific performance of the contract by the other party. Contract considered, and held not to. be an option but a contract to. sell on the one hand and to buy on the other, and of which time was not of the essence.</p> <p>6. —Contract—Time as Essence.</p> <p>When the only default of the plaintiff was delay in performance of a contract to buy land and the position of the defendant had not been materially changed thereby, a performance after the stipulated time may entitle the plaintiff to a decree for specific execution since mere lapse of time is not in general a sufficient ground in equity for the refusal of relief. A forfeiture caused by the nonpayment of money, however express may be the language of the contract, will, as a general rule, be relieved, from on the theory that interest is a sufficient compensation. But the failure to pay must not be wilful, nor the delay in payment be unreasonably long, and the plaintiff seeking relief from his default must show that it was not intentional and has not caused irreparable injury to the defendant.</p>

<p>1. —Pleading—Trespass to Try Title—Tenancy.</p> <p>Where, in trespass to try title, the petition contained a tender of a certain sum to defendant paid to plaintiff’s ancestor by the person under whom defendant claimed in an executory contract of sale which had never been executed, and, in reply to a plea of limitation, the plaintiff set up said executory contract and alleged that defendant and those under whom he claimed were placed in possession by plaintiff and his ancestor, that they were tenants at will, and that by the terms of the executory contract they were permitted to improve without cost to plaintiff or his ancestor and said tenancy was terminated by the suit, it was not incumbent on plaintiff to allege the price and terms of the contract, the time when the ancestor was to perform, or that he had performed or was able to perform the contract.</p> <p>2. —Same—Replication to Plea of limitation.</p> <p>As plaintiff did not seek to recover on said executory contract, it was not necessary to set out any more of it than was thought necessary to defeat defendant’s plea of limitation, and if defendant had acquired any equities under the contract of sale it was a matter of defense which should have been specially pleaded by him.</p> <p>ON REHEARING.</p> <p>3. —limitation—Tenant at Sufferance—Executory Contract.</p> <p>Where the defendant took possession under an executory contract of sale which permitted him to improve the land without cost to the vendor, and said contract was never executed nor its terms complied with by him, no title passed and he became a tenant at sufferance, and so long as he recognized the vendor’s title no limitation ran in his favor.</p>

<p>1. —Fellow Servants—Railway—Vice Principal—Statute.</p> <p>Under the statute, the test as to whether or not the relation of fellow servants exists between employes of a railway corporation, is whether one is intrusted by such corporation with authority of superintendence, control or command of - the others or has authority to direct the others in the performance of their duties. If so, then the employe who has such authority is, by the very terms of the statute, a vice principal of the corporation and not a fellow servant with his co-employes. Revised Statutes, art. 4560g.</p> <p>2. —Same—Railroad Corporation—Negligence of Employes.</p> <p>By the fellow servants statute of this State the common law rule to the effect that the negligence of an employe would not be imputed to the master unless such employe had the power to employ and discharge, was abrogated; and the purpose and effect of the statute is to impute to the railroad corporation operating a line of road in this State the negligence of an employe upon whom it has conferred authority or power to influence the action or volition of another employe in the performance of his duties.</p> <p>3. —Same—Grade of Employment. -</p> <p>The statute requires the concurrence of four distinguishing characteristics to constitute two persons fellow servants, namely: (1) they must be in • the same grade of employment; (2) they must he doing the same character of work or service; (3) they must be working together at the same time and place and at the same piece of work; and (4) they must be working to a common purpose; and the requirement that they must be in the same grade of employment is' wanting when one has the authority to command, control or direct the other in the discharge of his duties. Revised Statutes, art. 4560h.</p> <p>4. —Same—Operating Cars.</p> <p>Where an employe and his colaborers were operating a hand or push car within the yards of the railway company to transport lumber to and from its cars, and, under direction of the foreman, the employe was attempting to fix a turntable, so that the car could be run from one track to another, when he was injured, he "was operating a car within the meaning of the fellow servants statute (Revised Statutes, art. 4560f), and engaged in work relating to the company’s business.</p> <p>5. —Same—Statute—Constitutional Law—Police Power.</p> <p>Articles 4560g and 4560h, Rev. Stats., are not repugnant to the Fourteenth Amendment to the Constitution of the United States. They are applicable to all persons of a particular class, affecting alike the employes of all corporations or persons owning or operating a railroad when brought under their influence under like circumstances and conditions, and are a legitimate exercise of the police power of the' State.</p> <p>6. —Railways—Defective Appliance—Assumed Risk.</p> <p>The defense of assumed risk, interposed in an action by an employe against the railway for injuries to the person while operating a car, based on the ground that the injured employe knew of the defect and danger which caused the injury, is not available to the railway under the statute where it is shown that its superior employe, whose duty it was to repair, also had, knowledge of such defect and danger before the accident. Gen. Laws 1905, chapter 163.</p> <p>7. —Evidence—Collateral Issues.</p> <p>It is a well settled rule that all questions tending to raise - collateral issues and all evidence offered in support of such issues ought to be rejected.</p> <p>8. —Same—Qualification of Expert—‘Witness.</p> <p>While particular instances of a lack of qualification, whenever a special qualification is required for testimony to a certain fact, may be brought out by questions to the witness himself, yet particular instances of mistake or error indicating a lack of expertness are, ordinarily, not provable by extrinsic evidence; and, it seems, proof of such particular instances is only admissible at the discretion of the court when he deems it useful.</p> <p>9. —Same.</p> <p>Where an expert gave it as his opinion that the plaintiff’s limb was permanently paralyzed, and on cross-examination stated that on the trial of another case against defendant he had testified that one Lyncli was paralyzed and would never walk again, thefe was no error in rejecting evidence that Lynch was walking about as well as he ever could.</p> <p>10. —Damages—Verdict.</p> <p>Where the evidence showed that the plaintiff was thirty-five years of age at the time of the injury, that he had been an industrious and capable man, 'that he had taught school, was an expert printer and was earning fifty dollars per month, that he was knocked unconscious and had been confined to his bed unable to walk for a period of nine months, and that he is paralyzed and has suffered continuously and such conditions will continue, a verdict awarding damages in the sum of twenty-thousand dollars could not be held excessive in the absence of anything in the record tending to show that it was the result of passion, prejudice or other improper motive.</p>

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

<p>1. —Briefs—Appeal—Practice in Courts of Civil Appeals—Statute.</p> <p>Failure to file copy of the appellant’s brief in the trial court five days before the filing' of the transcript in the Court of Civil Appeals, as required by article 1417 of the Revised Statutes, will not be ground for dismissing the appeal when a good and satisfactory excuse for such failure is shown.</p> <p>2. —Jurisdiction of Courts of Civil Appeals—Justice Court Cases—Amount in</p> <p>Controversy—Costs.</p> <p>Where a suit in Justice Court was to recover the sum of one hundred dollars, and on appeal to the County Court the plaintiff had judgment for a less sum .from which no appeal was taken, but the defendant appealed from an order and judgment overruling its motion to tax the cost of the County Court, which amounted to more than two hundred dollars, against the plaintiff, the Court of Civil Appeals had jurisdiction of the appeal.</p> <p>3. —Jurisdiction of County Court—Appeal from Justice Court.</p> <p>Where an appeal is prosecuted by the plaintiff from the Justice Court he is not required to give in that court notice of appeal or to file an appeal bond. A request to the justice to make out- the transcript required by article 1673, Revised Statutes, and transmit it with the original papers in the cáse to clerk of the County Court perfects the appeal, and the County Court obtains jurisdiction when such transcript and papers are filed therein.</p> <p>4.—Same.</p> <p>Where the case originates in Justice Court and plaintiff is cast in the suit and an appeal is taken from the judgment rendered in the County Court, a showing in the statement of facts that a transcript of the proceedings had and judgment rendered in the Justiee Court was filed in the County Court, is sufficient to show that the latter had obtained jurisdiction of the case on appeal.,</p> <p>5.—Costs—Appeal from Justice Court—Statutes.</p> <p>Where judgment in Justice Court was for the defendant, and on. appeal to the County Court the plaintiff had judgment, but it conclusively appeared that he purposely so shaped the trial of his case in the former court that judgment could not be rendered in his favor with a view of appealing the case to the County Court and there casting the entire costs upon the defendant, the latter was entitled, as a matter of law, to have the costs incurred in the County Court taxed against the plaintiff. Revised Statutes, arts. 1436, 1438.</p>

<p>Appeal from the County Court of Palo Pinto County. Tried below before Hon. E. B. ¡Ritchie.</p>

<p>1. -r-Telegraph. Company—Office Hours.</p> <p>A telegraph company owes no duty to the public to accept for transmission or to make delivery of telegrams tendered after the offices at initial point and destination are closed at night under a reasonable rule as to office hours.</p> <p>2. —Same—Contract—Pleading.</p> <p>Where a message was delivered to a telegraph company after office hours, and in a suit to recover for failure to transmit and deliver the sender alleged that a special contract was made with the agent to promptly convey and deliver it at once, and that defendant company promised to convey and deliver within a reasonable time, and that a reasonable time under the circumstances was only an immediate and very prompt delivery, the right to recover was. properly restricted to a breach of the special contract for immediate transmission and delivery.</p> <p>3. —Appeal—Briefs—Statements under Assignments.</p> <p>Grouped assignments of error not followed by any statements will not be considered.</p> <p>4. —Same—Objectións to Evidence.</p> <p>Assignments of error based on the action of the court in sustaining objections to certain answers in a deposition, setting out the interrogatories but failing to set out the answers or refer to bills of exception, cannot be considered.</p>

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

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

<p>1. —Fraudulent Representation—Measure of Damages.</p> <p>On an exchange of property, the measure of damages for fraudulent representations inducing the trade (as to the existence of a flowing well of water thereon) was the difference between the value of the property received and that given in exchange.</p> <p>2. —Same.</p> <p>Where the plaintiff received city property encumbered with a debt of $2,600 in exchange for land in the country with a lien upon it for $2,500, and sued for damages for fraudulent representation inducing the trade that there was a well upon the land conveyed to him, a charge fixing the measure of damages at the difference, if any, between the reasonable market value of the property he parted with on the day the trade was consummated and the reasonable market value of that which he received under the deed from defend-' ant, was not error. °</p>

<p>1.—Rescission of Sale—Failure of Consideration—Pleading.</p> <p>A petition in a suit by the buyer to rescind a sale of an automatic electric piano, held good, as against general' demurrer, wherein it was alleged that before sale the seller’s agent represented and. warranted that the instrument if properly used and handled would give no trouble and require no repairs for five years, and guaranteed the soundness for" said period; that the buyer believed and relied on such representations as being true, and same constituted the consideration for the purchase; that such representations were untrue and incorrect in that although carefully used' and handled, the piano began to get out of order and failed to operate, though properly connected with a sufficient electric current, immediately after the sale, and has continued from time to time ever since the purchase to fail to operate, and that the exact nature of the defects are unknown to said buyer, wherefore the consideration has wholly failed.</p> <p>55.—Evidence—Leading Question.</p> <p>A question to a witness who was the plaintiff in a suit to rescind a sale on the ground of breach of warranty, “state whether or not you relied upon representations made to you,” was not objectionable as leading. The question did not suggest to the witness that an affirmative rather than a negative answer was desired.</p> <p>3. —Same—Warranty—Custom.</p> <p>In a suit by the buyer to rescind a sale of an automatic piano on the ground of breach of an express warranty and guaranty that same was sound and if properly handled would give no trouble and need no repairs for the period of five years, evidence that it was customary to warrant pianos for five years was inadmissible to prove the warranty.</p> <p>4. —Rescission of Contract—Recovery of Purchase Money.</p> <p>In a suit by the buyer to rescind a contract of sale and to recover the purchase money paid and to cancel the purchase money notes upon the ground that the representations made by the seller as to quality and efficiency of the article sold were untrue and that it was not such as warranted, wherein the seller pleaded only the general denial, the latter could not complain of a charge authorizing a verdict for plaintiff for all the money paid and the cancellation of the notes for unpaid purchase money. If he was entitled to an abatement of any part of the purchase money under the pleadings and evidence he should have requested a special charge.</p> <p>5. —Same—Fraud—Pleading.</p> <p>To entitle the buyer to return an article sold with a guaranty, and recover all the purchase money, there must be fraud or a contract on the part of the seller to take back the article; but where the matters averred constitute what is deemed by the law a constructive fraud, it need not be alleged that the representations were fraudulently made.</p> <p>8.—Same.</p> <p>False and fraudulent representations by the seller will not entitle the buyer to rescind a contract of sale unless they are believed to be true and acted upon by him as an inducement in making the purchase.</p> <p>7. —Same.</p> <p>The buyer is entitled to a rescission of a contract of sale upon tendering the article sold and proof that the seller made certain representations which were false and 'fraudulent and which he relied upon and was induced thereby to make the purchase, regardless of whether the article was entirely worthless or not.</p> <p>8. —Same—Warranty by Agent.</p> <p>Failure of a warranty or guaranty made by the agent of the seller personally, and not in his capacity as such agent, affords no ground for a rescission of the contract of sale by the buyer.</p>

<p>1. —Jury—Challenge to Array.</p> <p>The statute provides that a party to a suit which is to be tried by jury, may, before the jury is drawn, challenge the array of jurors upon making it appear that the officer summoning the jury has acted corruptly, and has wilfully summoned jurors known to be prejudiced against the party challenging, or biased in favor of the adverse party; and a challenge to the array cannot be made for any other cause.</p> <p>2. —Same—Challenge to Panel.</p> <p>That the commissioners did not draw a separate jury for each week of the term of the District Court, but, under instructions of "the court, drew and returned a list of names for the term, and those not excused were held as jurors for the three weeks of the term, was not cause for challenge to the panel in a trial occurring in the third week.</p> <p>3. —Same.</p> <p>The provision of the statute that the court may adjourn the whole number of jurors for the week, or any part thereof, to any subsequent day of the term, clearly shows the intention to confer upon the court the power and right to adjourn jurors for one week, or any of them, to another week or day of the term for service; and the general provision requiring a jury to be drawn and summoned for each week must yield to this particular intention.</p> <p>4. —Contributory Negligence—Burden of Proof.</p> <p>When the case made by the injured servant does not expose him to a suspicion of negligence, the burden of proof upon the issue of contributory negligence is upon the master.</p> <p>5. —Same—Definition.</p> <p>A definition of contributory negligence in a charge as “the want of ordinary care on the part of the injured person, that is to say, the want of such care as an ordinarily prudent person would have exercised under the same or similar circumstances, which, concurring with the negligence of the defendant, if any, proximately caused the injury,”- is not subject to the objection that it defined the term as the want of ordinary care which proximately caused the accident and injury.</p> <p>6. —Evidence—Opinion—Derailment.</p> <p>Where, upon the issue as to the place of the derailment of an engine, a witness testified that it was near the marks that the engine left the rails and that he had observed how engines mark the rail and that such marks were similar to the marks that he had observed on the rail, it was not error to exclude his further testimony that the truck wheels of an engine would make more distinct marks in passing over it than would the trucks of a car and would be like the ones observed, especially as he admitted that he did not know whether the marks were made by an engine or by a car.</p> <p>7. —Same—Expert Testimony—Capacity to Labor—Personal Injuries.</p> <p>A physician, after detailing all symptoms of the ailments of the injured party and giving the grounds upon which he based his opinion, could testify that such party could not perform the duties of an engineer on account of his injuries, over objections that it was the conclusion of the witness, not within the domain of expert testimony, and an invasion of the province of the jury.</p> <p>8. —Same—Impeachment of Witness.</p> <p>Where a section foreman of the railway company testified that the ties on the roadbed had been examined by him two or three weeks before the derailment and wreck of the train and that he did not discover any rotten ones, and that ties and track were in good condition just before the wreck, and that he burned the broken ties at the place of the wreck, testimony that a rule of the company required such material as broken rails, axles or debris which may be of use in determining the cause of an accident to be preserved, was admissible on cross-examination as tending to discredit the evidence of the witness and to show the destruction by him of evidence required by the rule to be preserved.</p>

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

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

<p>Master and Servant—Known Danger—Electricity—live Wire.</p> <p>Evidence considered, in ease of a telegraph lineman burned by a live wire which was dangerously charged by contact with a trolley wire, and held to show knowledge of the danger by the injured employe, though he denied such knowledge, precluding his recovery and warranting the reversal and rendition in favor of defendant .of a judgment for damages recovered by him against his employer,</p>

<p>1. —Garnishment—Judgment—Jurisdiction—Residence—Situs of Debt—Constitutional Law.</p> <p>A railway company operating in Texas and Missouri owed wages payable in Texas to an employe resident there. A creditor of the employe sued him in Missouri, obtaining constructive service on him in" Texas in accordance with the Missouri laws and obtaining personal -service in Missouri on the railway company as garnishee. The debt was exempt from garnishment by the laws of Texas, but not, as tó a nonresident, by those of Missouri; and, the debtor making no appearance, the garnishee pleaded his exemption, which was disallowed; judgment was rendered for the amount it admitted owing, and was paid by the garnishee. In a suit for his wages by the employe against the railway company in Texas it is held that the Missouri court had jurisdiction to render the judgment in garnishment; that the situs of the debt was immaterial; and that the courts of Texas were required to give faith and credit to the Missouri judgment by allowing defendant credit for the money paid in its discharge.</p> <p>2. —Same—Cases Discussed.</p> <p>Chicago, R I. & P. Ry. Co. v. Sturm, 174 U. S., 710; Harris v. Balk, 198 U. S., 215; Louisville & Ñ. R,y. Co. v. Deer, 200 U. S., 176, discussed and followed. Continental Ins. Co. v. Chase, 89 Texas, 212; same case, 33 S. W., 602, distinguished.</p>

<p>1. —Railway—Negligence—Speed of Train.</p> <p>Where it was the duty of a brakeman to get on a moving train at a certain time and place and this was known to the engineer and conductor in charge of the train, it was their duty to run it at a rate of speed which would enable such brakeman to get on with reasonable safety; and what that rate of speed was, and whether the train was run at it, were questions for the jury.</p> <p>2. —Contributory Negligence—Boarding Moving Train.</p> <p>Where a brakeman was injured in attempting to board a train, and it .appeared that it was his duty to get on at the time and place, and the duty of the engineer and conductor to slow the train to a rate of speed to enable him to get on with reasonable safety, he could assume that this had been done, and in the absence of knowledge that it had not, the issue of contributory negligence in attempting to get on when the speed was greater, was for the jury.</p> <p>3. —Negligence—Speed of Train.</p> <p>Where the railway company was charged with negligence in running its train at an excessive rate of speed causing an injury to an employe while he was attempting to board it in discharge of Ms duty, and it was alleged that it was the duty of the engineer and conductor in charge of the train to so reduce the speed as would enable the employe to get on with reasonable safety to himself, testimony that it was usual to run trains at about six or eight miles an hour under such circumstances, that the train on this occasion was run at a greater rate of speed and that it was excessive speed that caused the injury, authorized a finding of negligence, there being no exceptions to the petition on the ground of failure to allege the rate of speed to which the train should have been reducen, or what was usual or customary under the circumstances.</p> <p>4. —Charge—Abstruse Words—Definition—Practice.</p> <p>A charge will not be held erroneous because of the use therein of abstruse words or phrases without explaining their meaning, in the absence of a request for a special charge supplying the omission.</p> <p>5. —Same—Weight of Evidence—Comment on Facts.</p> <p>It is error for the trial judge in his charge to comment on the weight of the evidence, or emphasize any particular fact or group of facts, or otherwise indicate to the jury an opinion as to weight or importance of any given fact or circumstance in evidence; but, to invoke the rule, the party complaining must point out the particular in which it has been violated.</p> <p>6. —Same—Repetition—Special Charges.</p> <p>It is not error to refuse charges requested when the matters are sufficiently embraced in and covered by the general charge.</p>

<p>1.—Pleading—Supplemental and Amended Petition.</p> <p>The filing of an amended petition does not supersede and render irrelevant a supplemental petition theretofore filed in reply to defendant’s answer.</p> <p>8.—Divorce—Attorneys’ Fee—Estoppel.</p> <p>The fact that assaults and outrages by the husband upon the wife were provoked by the filing of a petition for divorce wherein the attorneys for - the wife charged the husband with previous assaults and outrages, would be no defense as an estoppel in a suit by the attorneys against the husband and wife for their fee after the wife had returned to her husband and the suit for divorce was dismissed, in tne absence of evidence that the attorneys acted in bad faith in alleging said assaults and outrages.</p> <p>8.—Attorneys’ Fee—Good Faith—Evidence.</p> <p>Where, in a suit by attorneys for their fee in filing a suit for divorce in behalf of the wife, the defendants alleged that the suit was not authorized or brought in good faith by the attorneys in that the alleged grounds for divorce were not authorized by the wife, evidence as to the statements of the wife to the attorneys as to the grounds for divorce were admissible in evidence upon the issue of good faith, and were not subject to the objection that they were hearsay.</p> <p>4.—Divorce—Attorneys’ Fee—liability of Husband.</p> <p>In order to entitle an attorney to a fee for filing a suit for divorce at the instance of the wife upon the ground of cruel treatment on the part of the husband it was not necessary that the suit for divorce should have been necessary for the personal safety of the wife and for the preservation of her property rights. It was sufficient that the facts were probably true and constituted such cruelty as rendered their living together any longer insupportable. In such case when the suit is dismissed and the husband and wife live together, the husband is liable for the fee.</p> <p>5. —Same.</p> <p>Where attorneys file suit for divorce at the instance of the wife and base their claim to a fee for such services upon quantum meruit, after the suit was dismissed by the wife and the husband and wife were again living together, the mental condition of the wife at the time she employed the attorneys was irrelevant and immaterial. The right to recover reasonable compensation in such case proceeded alone upon the ground that such action was reasonably necessary for the protection of the wife. If such was the case, both husband and wife were legally liable for the reasonable value of the services rendered regardless of the wife’s mental condition.</p> <p>6. —Assignment of Error—Insufficiency,</p> <p>An assignment of error that the court erred in overruling appellant’s motion for new trial “because said verdict and judgment are contrary to law, and contrary to the evidence, and without evidence and law to support the same,” is too general to require consideration on appeal.</p>

<p>1. —Fraudulent Conveyance—Charge—Burden of Proof.</p> <p>In an action by a creditor to set aside a conveyance of land on the ground that the same was made with intent to defraud creditors, charge of the court considered, and held not subject to the objection that it placed upon the defendant the burden of proving that he was an innocent purchaser of the property in controversy for a valuable consideration, in order to entitle him to a verdict.</p> <p>2. —Same—Refusal to Answer Interrogatories.</p> <p>In a suit to set aside a conveyance of land upon the ground that it was made to defraud creditors, the plaintiff introduced testimony that defendant refused to answer certain interrogatories propounded to him by the plaintiff, defendant stating at the time as his reason for such refusal that his attorneys has so advised him, and that he expected to be at the trial and to testify. Held, said evidence was not subject to the objection, that it was immaterial and irrelevant to any issue in the ease and calculated to prejudice the rights of the defendant. Defendant did appear and testify at the trial. If his refusal to answer the interrogatories was willful, it was relevant to prove that fact as bearing upon his credibility; if his refusal was in good faith on the grounds assigned by him, the admission of the testimony complained of was harmless.</p> <p>3. —Trial—Argument.</p> <p>Appellant cannot complain of remarks of opposite counsel criticising his veracity and habits of life when the evidence justified the criticisms, nor can he complain when such remarks were called for and made in reply to the argument of his own counsel.</p> <p>4. —Assignment of Error—Rule 31.</p> <p>When a statement under an assignment of error contains no recital of the evidence but mere conclusions of fact, and refers to the entire statement of facts to support such conclusions, it is not entitled to a consideration because not in compliance with rule 31 for practice in the Courts of Civil Appeals.</p> <p>5.—Fraud—Proof.</p> <p>Fraud is always difficult of proof by direct testimony, and circumstantial evidence must necessarily be resorted to. Evidence as to a fraudulent conveyance considered, and held sufficient to support the verdict of the jury setting aside the conveyance. ,</p>

<p>1. —Boundary—Conflicting Calls—Evidence—Finding of Court.</p> <p>It is the province and prerogative of a court sitting without a jury in the trial of a boundary case, to determine which of several conflicting calls is the most material and certain in tracing the footsteps of the original surveyor. In a boundary suit evidence considered, and held to warrant the finding of the trial court that a call for the southeast corner of a survey as a beginning point was a clerical error; that the southwest corner was intended; that a call for a certain stone building was more certain and material than other calls inconsistent therewith, and in disregarding the calls in junior adjacent surveys and in a deed executed at an early day by the original patentee to a part of the survey in controversy.</p> <p>2. —Appeal—Bills of Exception—Failure to File.</p> <p>When it appears that a bill of exception to a ruling of the trial court was not filed in the court below, the bill should not be considered on appeal.</p> <p>3. —Evidence—Land Office Copy—Certificate of Surveyor.</p> <p>A plat on file in the Land Office had indorsed upon it a certificate by the surveyor making the same that the plat correctly represented the surveys shown thereon and that there was a conflict between two of the surveys, as represented. Held, the certificate of the surveyor was properly excluded on objection that it was not shown that the surveyor had located either of the surveys shown by him to be in conflict, or was present when they were made, or that he had run out the lines of said surveys and found the objects called for in the field notes, or that he was interested in either survey.</p>

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

<p>Appeal from the District Court of Dallas County. Tried below before Hon. É. B. Muse.</p>

<p>1. —Contract—Implied Covenant—Performance Contingent on Future Event.</p> <p>Where a contract is made which is performable at the time of the occurrence of a future event, the law imputes to the promisor an agreement that he will put no obstacle in the way of the happening of that event, and that he will hold himself in readiness to co-operate where his co-operation is a necessary element in the happening of the contingency. If, in violation of this implied covenant on his part, he does something which prevents the happening of the event, the contract becomes absolute and must be performed as if the event had occurred.</p> <p>2. —Same.</p> <p>Where the president of an incorporated mercantile company purchased certain shares of the stocK whereby he became the holder of a majority of the stock, and as part of the consideration obligated himself to pay a certain sum to the seller so soon as the company secured a new lease of the premises then occupied, and then voluntarily sold the store and the right of possession of said premises, thereby preventing the happening of the contingency, his obligation became absolute, whether he himself prevented the performance of the implied covenant or induced and prevented its performance through the company; and it was immaterial that in bringing about the sale he acted in good faith in the interest of the company.</p> <p>3. —Same—Charge—Weight of Evidence.</p> <p>An instruction that the mere expectancy by the promissor that the company would not be permitted to remain in the store, if he had such expectancy, did not justify him in selling the store unless such expectation proceeded from the landlord or notice to vacate, held correct and not on the weight of evidence.</p>

<p>1.—Contract—Sale of land—Forfeiture Clause—Option.</p> <p>A contract in writing signed by the parties, reciting that the owner agreed to sell and convey a certain parcel oí land for a certain sum in money payable a certain sum in cash and the balance in notes; that to bind the contract the contracting parties each deposit a certain sum to be forfeited by the party failing to fulfil his part of said contract, and that same is to be consummated in thirty days, evidenced a valid sale of the land, notwithstanding the forfeiture clause, and not a mere option to purchase.</p> <p>2.—Stakeholder—Costs—Attorney’s Fee.</p> <p>Where a stakeholder, made a party defendant by the plaintiff in a suit to recover a forfeit, was compelled to employ an attorney to,file his answer, and answered to the effect that he was ready and willing to pay the sum to the party entitled to receive it, and to this end stood ready to pay it into court to be paid to the party entitled thereto, he was entitled to an attorney’s fee to be taxed as costs against the plaintiff who was cast, in the suit.</p>

<p>1,—Personal Injuries—Permanent Injuries—Future Suffering.</p> <p>Evidence that the injury inflicted upon the head of plaintiff over the eye caused an indenture in the bone, which existed at the time of trial, which would cause plaintiff to have more or less headaches all the time and affect the sight of the eye about half, and cause dizziness and pain, and that these conditions would always remain, authorized a charge submitting the issues of permanent injury and future suffering.</p> <p>3.—Damages—Permanent Injuries.</p> <p>A charge authorizing the jury to allow damages for permanent injuries to the person in such sum as they believe may accrue in the future, was not error. The use of the word “may” did not render it objectionable.</p> <p>3. —Married Women—Right to Sue Alone.</p> <p>A married woman may sue alone for injuries to her person on proving that she and her husband have been separated for four years, that during that time she has been making a living for herself and child, and that during such time he has not contributed anything for their support, but has refused to assist her in any way, or have anything to do with them. The failure of the husband to contribute to the support of family for so long a time warrants the inference that had he been applied to, to join in the suit he would have declined.</p> <p>4. —Same—Capacity to Sue—Pleading.</p> <p>_ Where a married woman sues alone and her petition shows her legal capacity to sue, and there is no verified pleading attacking it, the court may assume in its charge that she is authorized to maintain the suit in her own name. Revised Statutes, art. 1265.</p> <p>5. —Negligence—Injury to Passenger—Proximate Cause.</p> <p>Evidence that the passenger had reached the car into which the conductor had directed her, and before she had time to take a seat in the car there was a train or engine propelled against the car with such force that she was thrown against the back of the seat and received the injuries sued for, authorized a finding of actionable negligence on the part of the carrier proximately causing the injuries.</p>

<p>1. —Landlord and Tenant—Lien—Waiver.</p> <p>Evidence considered and held to support a finding that a landlord’s lien for his stock sold the tenant to enable him to make a crop had been waived— the tenant never having cultivated the rented premises and the property being absent therefrom more than thirty days.</p> <p>2. —Lien—Conversion—Intervention.</p> <p>In a suit in the County Court on notes secured by a mortgage on personal property, which sought foreclosure of the lien and personal judgment against a third party for the value of a part of the mortgaged property which had been sold to and converted by him, the holder of a junior lien on the converted property had no right to intervene for the purpose of having personal judgment against such third party for the excess of the value of the converted property over the claim of the prior lien holder.</p> <p>ON MOTION FOR REHEARING.</p> <p>3. —Conversion of Mortgaged Property.</p> <p>The recovery by a mortgagee for conversion of the mortgaged property is limited to the value of the debt secured, though the converted property is worth more.</p> <p>4. —Intervention—Pleading—Interest in Subject Matter.</p> <p>The allegation of an intervener that he is interested in the subject matter of the litigation is a mere pleading of a conclusion of law, to be given effect only as far as the facts alleged support such conclusion.</p> <p>5. —Intervention—Interest in Litigation.</p> <p>An interest in the property in litigation in a mortgage foreclosure does not give a right to intervene where there is no interest in the particular rights, wrongs or remedies involved in such litigation.</p>

<p>1. —Forcible Entry and Detainer—Possession.</p> <p>To constitute actual possession of enclosed pasture land, entitled to protection under the law of forcible entry and detainer, it is not necessary that the occupant reside on the land or be present in person thereon at the time of entry.</p> <p>2. —Same—Unlawful Entry,</p> <p>An entry on land is forcible within the meaning of the law, where made without the consent of the person having actual possession (Rev. Stats., art. 2520) though made under claim of title and right of entry, without violence, and in the absence of the person in possession.</p> <p>3. —Same—Title.</p> <p>The merits of the title cannot be inquired into in the action of forcible entry and detainer; and if the entry is within the meaning of the statute a forcible or unlawful one, it is no defense to show that it was by the holder of title entitled to possession under it.</p>

<p>1. —Foreign Will—Record in this State—Effect—Statute Construed.</p> <p>The filing and recording in this State of a copy of a foreign will under the provisions of art. 5353, Rev. Stats., has no effect except to constitute the will a muniment of title for the devisee therein, and does not empower the executor of said will to act as such in this State. In order to acquire such power and authority it is necessary for the will to be probated under the provisions of art. 1909, which provides for the probate of copies of wills the originals of which have been probated in other States.</p> <p>2. —Same—Contest—Jurisdiction.</p> <p>No contest can be had of a will filed and recorded under the terms of art. 5353, Rev. Stats., unless such will in some manner disposes of land in this State, and the contest must take place in the county in which the land is situated.</p> <p>3. —Will—Mental Incapacity—Evidence.</p> <p>In an action to set aside a will because of the want of mental capacity to execute the same, evidence considered, and held sufficient to support a judgment annulling the will.</p>

<p>1. —Vendor and Vendee—Executory Contract—Breach—Liability.</p> <p>It is settled law in this State that when a vendor in a contract to convey land did not have title at the time the contract was made and was therefore unable to make title, the purchaser is not entitled to recover the difference between the contract price and the market value of the land, but is confined, if he has paid the purchase money, to the return thereof with interest from date of payment, and such special damages as he may have suffered by reason of having been induced to enter into the contract; and if he has not paid the purchase money, then he is confined to his special damages, if any, which he must allege and prove.</p> <p>2. —Same—Same—Specific Performance.</p> <p>Ownership by the vendor of the land which is the subject matter of a contract of sale, lies at the foundation of an action by either the vendor or the vendee to enforce specific performance of the contract.</p> <p>3. —Same—Same—Pleading—Judgment.</p> <p>Where plaintiff’s action was simply for specific performance of p, contract for the sale of land or, in the alternative, for damages for its breach, and it appeared from the evidence that the defendant vendor never had title to the land and that the plaintiff had paid no part of the purchase money, it was error for the court to render judgment against the defendant for damages for wrongfully inducing plaintiff to enter into a contract with him to buy land which he did not own and could not sell. Plaintiff’s action was for a breach of a contract, the judgment was for a tort.</p>

<p>1.—Evidence.</p> <p>Evidence that plaintiff was uneducated and illiterate, under proper allegations, was admissible to explain his failure to inform himself as to the existence of liens against land of which he was negotiating a purchase.</p> <p>2. —Evidence—Sale—Tender.</p> <p>In an action to recover back property traded for land, alleging tender back of the deed furnished as not being in compliance with the contract, evidence of what plaintiff said to his sons, who had for him delivered the property and received the deed, and who read it to him over the telephone, was admissible, in connection with other proof, to show his prompt repudiation of the deed and direction to deliver it back and reclaim the property.</p> <p>3. —Evidence—Objections.</p> <p>Objections to certain testimony as a whole were not available where part of it was admissible.</p> <p>4. —Same—Harmless Error.</p> <p>Admission of evidence over objection is harmless where the same facts were subsequently proved without objection.</p> <p>5. —Evidence—Corroborative Statements.</p> <p>The rejection of statements made to a third person, in disproof of the inference of subsequent fabrication of a fact testified to by a party at the trial but omitted in his previous ex parte deposition, was not ground for reversal where it related to a matter which, if determined in his favor, would not have supported a judgment other than that which was rendered.</p> <p>6. —Evidence—Abandoned Pleading.</p> <p>An original petition abandoned by amendment and containing no admission material to the issues on trial, was not admissible in evidence for defendant.</p>

<p>Appeal from the County Court of McCulloch County." Tried below before Hon. C. A. Wright.</p>

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

<p>1.—Building Contract—Material-Man—Equitable Búght to Fund.</p> <p>D. held a contract to build a sewer and pave certain streets in a city, and for such work purchased brick from B. D. abandoned the contract, and the right of B. being disputed by D., the city deducted from the amount due D. an amount equal to the amount of B.’s claim and retained possession of the same for the express purpose of discharging B.’s claim in the event it should be determined by suit that B. was entitled to it. In a contest between B. and other creditors of D. over the fund so reserved by the city, held, that the right of B. was superior.</p> <p>5$.—Garnishment—Judgment Against Garnishee—Effect.</p> <p>Pleading and evidence considered, and held that a simple judgment against a city as garnishee did not vest in the plaintiff title to a particular fund in the possession of the garnishee belonging to the judgment debtor.</p>

<p>Judgment—Failure to Dispose of Parties and Issues—Appeal.</p> <p>Land agents sued the owner and purchaser of land for commissions in effecting the sale. The owner plead over against the purchaser asking that in event judgment be rendered against him, that he’ have judgment for the same amount against the purchaser. The judgment of the court was in favor of the agents against the owner and in favor of the owner over against the purchaser, but the judgment in- no manner disposed of the agent’s claim against the purchaser. Held, that the judgment was not a final judgment from which an appeal might be taken.</p>

<p>1. —Master and Servant—Ordinary Care—Charge.</p> <p>In a suit for damages for personal injuries caused by falling down an elevator shaft, charge considered, and held to have properly submitted to the jury the issue whether or not defendant was guilty of negligence in failing to artificially light said shaft; nor did the court under the circumstances of this case err in submitting to the jury the question whether or not plaintiff was guilty of contributory negligence in falling into said shaft, instead of instructing a verdict for defendant on said issue.</p> <p>2. —Same.</p> <p>Where, in a suit for damages for personal injuries to an employe caused by falling into an elevator shaft, the court by its charge permitted a verdict against the defendant only in the event the jury found defendant guilty of negligence in failing to properly light said shaft, there was no error in the refusal of the court to instruct a verdict for defendant if plaintiff’s injuries were, caused by the negligence of a co-employe in leaving the elevator door open. The first charge in effect excluded every other ground than that therein stated on which plaintiff could recover.</p> <p>3. —Witness—Impeachment—Predicate.</p> <p>Testimony tending to impeach a witness is properly excluded where no predicate for impeachment has been laid.</p> <p>4. —Trial—Argument of Counsel,</p> <p>In a suit by a father for personal damages to his son, counsel for plaintiff used the following language in his argument to the jury: “Lay aside the fact that this man—you cannot give him compensation for the suffering he undergoes when he sees his boy crippled for life. Your hearts rush out to him in sympathy; but you cannot do that; but you can compensate him for his pecuniary toss, and you can do something that will perhaps make it more safe for me, and your boy, and mine, and everybody else that has occasion to deal with these people, to see that they treat us as reasonably prudent men ought to treat others.” Held, if the language used was improper at all, it was rendered harmless by an instruction by the court to the jury to disregard the same.</p>

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

<p>1. —Contract—Public Works—Attorney’s Fee—Public Policy.</p> <p>A contract to pay an attorney at law a certain sum of money as compensation for his services as an attorney in assisting a contractor to obtain a contract from a Commissioners’ Court to build a public bridge, considered in connection with evidence as to the services rendered by the attorney, and held void as against public policy, and this though the contract required the attorney only to use his best efforts by all rightful and legal means to assist the contractor in obtaining the contract.</p> <p>ON REHEARING.</p> <p>2. —Partnership—Notice to Partner.</p> <p>E. was president of a bank at W. and a partner in a bank at M. As president of the bank at W. he was served with notice not to pay a certain draft drawn on that bank. The draft was thereafter sold by the drawee to the bank at M. for a valuable consideration. E. had nothing to do with the management of the bank at M. Held, that notice to E. of the countermand of the' draft was not notice to Ms partnership bank at M.</p>

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

<p>Error from the County Court of Tarrant County. Tried below before Hon. John L. Terrell.</p>

<p>1.—Jurisdiction—Venue—Foreign Corporation—Connecting Carriers—Statute.</p> <p>Where suit was against a foreign railroad corporation and a domestic corporation for injuries resulting in the death of a passenger while traveling from a place in another State to a point in Hunt County in this State, and it appeared that they were connecting carriers under the contract of carriage; that both operated trains in this State, the foreign corporation owning no road in this State but running its trains over one owned by a domestic corporation, and having its principal office and agent for the transaction of its business in another county, and that the domestic corporation sued owned a road running through Hunt County, the District Court of the latter county had jurisdiction of the foreign corporation under the Act of March 13, 1905 (Gen. Laws 1905, p. 29).</p> <p>Z.—Corporations—Agents.</p> <p>When one corporation makes use of another as its instrument through which to perform its business, the principal corporation is really represented by the agents of the sub-corporation.</p> <p>3.—Railroads—Citation—Service on Agent.</p> <p>Where a foreign railroad corporation owned no road in this State but operated its trains over the road of a domestic corporation which it practically operated and controlled under a working agreement which in legal effect made them partners, service of citation upon a conductor of one of such trains within the State was sufficient in a suit against the foreign company under the Act of March 13, 1905 (Gen. Laws 1905, p. 29), though the party served was the conductor of and employed by the domestic company. '</p> <p>4. —Pleading—Parties—Relationship—Action for Death.</p> <p>Where the original petition in an action for injuries resulting in death named W. J. Sizemore as plaintiff, who sued for himself as surviving husband of deceased and for the benefit of others who were stated to be their children,' an amended original petition in which the name of W. J. Sizemore appeared only in the style, stating that “the plaintiff in the above entitled cause by leave of the court files this his amended original petition,” and alleging the residence of the plaintiff who brings the suit and that of the others for whose benefit it was brought, naming them, and that “plaintiff shows that his wife’s name was Ella Sizemore; that they were duly married many years prior to the injury; that at the time of her death she left surviving her plaintiff herein as her surviving husband, and each of the parties whose names appear in the first part of the petition and for whose benefit this suit was brought,” was good on demurrer as against objections that it did not name W. J. Sizemore as party plaintiff, or show any relationship of the other plaintiffs to deceased.</p> <p>5. —Same—Injuries Resulting in Death.</p> <p>Allegations that plaintiff’s wife was injured by striking her in the region of the liver, stomach, breast and abdomen, injuring, bruising and lacerating her liver, stomach, abdomen, kidneys and spine and otherwise injuring her internally to such an extent that she died as a result of said injuries, were sufficient as against special exception that they were too general and did not show the extent or character of each injury or how she was injured internally.</p> <p>6. —Evidence—Harmless Error.</p> <p>The admission of evidence over objection will not be ground for reversal when the same evidence has been previously admitted without objection.</p> <p>7. —Same—Opinion of nonexpert.</p> <p>When the witness states the facts upon'which he bases his opinion, though a non-expert, his opinion is admissible in evidence.</p> <p>8. —Same—Deposition—Corporate líame—Misnomer.</p> <p>Objection to the admission of the answers in a deposition, said objection being made by the defendant orally when the deposition was being read, on the ground that said defendant was not named in the petition and no cause of action was alleged against it, in this, that the petition claims against the St. Louis & S. E. By. Co., and defendant’s corporate name is St. Louis & San Francisco Railroad Company, was not well taken.</p> <p>9. —Same—Declarations of Deceased—Cause of Death—Rebuttal.</p> <p>Where the defendant introduced evidence in support of its theory that the deceased died from an ailment contracted before the time of the alleged injuries on defendant’s train, and that the idea of her being hurt on the train originated with plaintiff after the death, and introduced declarations of the deceased and of the plaintiff himself that deceased was troubled with a disease before the time of the alleged injury without mention of an injury on the train, declarations of the deceased as to her physical condition after the time of the injury and that she was injured on the train at the place alleged in the petition, was admissible for the plaintiff in rebuttal.</p> <p>10. —Jurisdiction—Actions Arising under Laws of Foreign State.</p> <p>Causes of action arising under the statute of one State may be enforced in the courts of another State where the laws of both States are substantially the same.</p> <p>11. —Same—Foreign Laws.</p> <p>The statute of Tennessee entitles the husband and children to recover damages for injuries resulting in the death of the wife and mother; and it is not so dissimilar to the law of this State as will prevent our courts taking jurisdiction of an action therefor and adjudicating the rights of the parties.</p> <p>12. —limitation—Foreign Statutes.</p> <p>The remedies as distinguished from the rights of the parties are determined by the law of the forum, and the statutes of limitation are a part of the remedy and not of the law affecting the rights. An exception exists where a statutory liability is sought to be enforced and the statute prescribes the time within which the suit must be brought and extinguishes the cause of action or right of recovery after such time.</p> <p>13. —Death—Right of Child to Recover for Death of Parent,</p> <p>Where the husband sued for himself and a son for the death of the wife and mother, and there was nothing to show what interest the son had in the life of deceased or how he was injured, a judgment in favor of both was unwarranted. From the testimony of the father that when he started to this State he bought a ticket for his “little boy,” injury and interest could not be inferred so as to support the judgjnent.</p>

<p>1. —Pleading—Trespass to . try Title—Petition.</p> <p>A petition, in an action of trespass to try title, alleging that the plaintiff was the owner in fee simple of the premises described, and that the defendant was setting up some pretended claim thereto which east a cloud on plaintiff’s title, and endorsed “This action is brought as well to try title as for damages,” considered in connection with an allegation in defendant’s answer that he had an actual interest in the premises sued for, sufficiently stated the nature of plaintiff’s cause of- action as against a general demurrer acted on after the answer was filed.</p> <p>2. —Limitation—Five Years’ Statute.</p> <p>Where the surviving wife purchased the land in suit, giving the community homestead in part payment therefor, and after such purchase conveyed a certain lot to the son, the deed reciting that it was an advance, but afterwards, contending that her conveyance was in fact made as an extinguishment of the son’s interest in the land in suit, she expressly repudiated his claim to any interest therein and remained in possession under her recorded deed, occupying it as her homestead, and claiming it as her own and paying all taxes for five years after such repudiation, the claim of the son was barred under the statute of limitation of five years.</p>

<p>Appeal from the County Court of Dallas County. Tried below before Hon. W. M. Holland.</p>

<p>I -jurisdiction—Estates of Decedents—Administration.</p> <p>Where the estate of a decedent is being administered in the County Court, its jurisdiction is exclusive.</p> <p>2.—Pleading—Exceptions to Petition—Jurisdiction—Practice.</p> <p>An exception to the plaintiff’s pleadings, which challenges the jurisdiction of the court to try the cause, may be urged at any time before final judgment.</p> <p>3.—Jurisdiction of District Court—Estates of Decedents—Administration— Pleading.</p> <p>Where, in a suit in the District Court to have the plaintiffs adjudged to be the heirs of a decedent and the property distributed, the petition showed that administration on the estate of such decedent was then pending in the County Court, and that while the administration had not been in fact closed the administrator had settled all claims against the estate and had filed an application for partition and distribution of the estate .and a request that the administration be closed, an exception on the ground of want of jurisdiction was properly sustained.</p>

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

<p>Appeal from the County Court of Liberty County. Tried below before Hon. I. B. Simmons..</p>

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

<p>1. —Evidence—Account Sales.</p> <p>In an action for damages to cattle in their shipment by rail an account of sales thereof, sent to plaintiff from his commission merchants but not shown by any testimony to be correct, was not admissible in proof of the amount for which.the cattle sold.</p> <p>2. —Same—Error.</p> <p>Error in receiving an account of sales of live stock in proof of the price brought by them was not rendered harmless by the fact that plaintiff had testified to the same price as being their market value in the condition in which they arrived. Being interested, his testimony could not be taken as conclusive.</p>

<p>1. —Misnomer—Idem Sonans.</p> <p>There is no distinction in law between the name Zan and Zann; the pronunciation being the same, the spelling is immaterial.</p> <p>2. —Vendor’s Lien—Foreclosure—Parties—Interpleader.</p> <p>In an action to recover and foreclose on vendor’s lien notes by assignees, defendants, the vendor and vendee, could not, by interpleader, make intermediate assignors parties, for the purpose of litigating, a claim to rescind the assignment to them as having been procured by fraud.</p> <p>3. —Pleading—Facts Supplied by Answer.</p> <p>A petition is not subject to demurrer for omitting to state facts which are supplied by the allegations of defendants’ answer.</p> <p>4. —Foreclosure—Assignment Procured by Fraud—New Contract.</p> <p>No defense to an action for recovery and foreclosure on vendor’s lien notes by an assignee was shown by establishing that the assignment was invalid because procured by fraud on the assignor and that the makers had settled with him by reconveying the land, where the uncontradicted proof showed that after the discovery of such fraud the assignor had settled with the assignee his claim arising therefrom by receiving a new consideration.</p>

<p>1. —Negligence—Stock Unlawfully at Large.</p> <p>The proprietor of a wagon was liable for the negligence of his servant driving it in running against and injuring a horse seen by the driver at large in a city, though the animal was permitted by plaintiff to be so at large in violation of the ordinances of the city.</p> <p>2. —Damages—Injury to Animal—Expenses.</p> <p>The owner of an animal dying as the result of injuries by defendant’s negligence may recover, in addition to its value, expenses of caring for and treating such injuries, if incurred in good faith and with reasonable expectation of cure.</p>

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

<p>1. —Personal Injury—Defective Switch—Negligence—Charge Approved.</p> <p>In an action against a railroad company for damages for personal injuries alleged to have been caused by the defective construction or maintenance of a switch, charge upon the issue of negligence considered, and held not subject to the objection that it was- contradictory and misleading.</p> <p>2. —Same—Proof of Negligence—Charge. •</p> <p>A refusal by the trial court to give a special charge which did not contain anything not embraced in the main charge except a declaration of the rule that negligence is not to be inferred from the mere happening of the event, is not reversible error.</p> <p>3. —Improper Argument—Not Reversible Error, When.</p> <p>When, in a damage suit, the amount of the verdict is not immoderate, the fact that the trial court gave the jury a verbal instead of a written instruction to disregard an improper argument of counsel, no written instruction having been requested, is not sufficient cause for reversal of the judgment.</p> <p>4. —Same—Practice—Failure of Appellant to Secure Ruling of Court.</p> <p>During the argument' of a case counsel for appellant contended that certain testimony upon which counsel for appellee was commenting, had been excluded on objection; counsel for appellee contended it had not; the court being in doubt directed the argument to proceed, stating that he would have the stenographer look up the matter; this the court forgot to do, and the matter was not again called to the attention of the court until the motion for new trial was filed. Held, it was the duty of appellant’s counsel to remind the court and secure a ruling before the trial closed, and, failing in this, appellant could not afterwards complain.</p> <p>5. —Motion for New Trial—Misconduct of Jury—Insufficient Showing.</p> <p>A motion for new trial based upon alleged misconduct of the jury in arriving at their verdict by taking the average of the different amounts favored by the different jurors, of which misconduct the only evidence was an affidavit of a third party that one of the jurors told him that the verdict was so arrived at, was properly overruled.</p>

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

<p>1. —Limitation—Five Years’ Statute—Payment of Taxes.</p> <p>One claiming title under the statute of limitation of five years must show the payment of taxes by himself or his vendor in possession for each of the years embraced in the period.</p> <p>2. —Same.</p> <p>Where, in trespass to try title, the plaintiff claimed under the five years statute of limitation, evidence that his vendor, who was in possession, intending to render the land in controversy for taxes for a particular year embraced in the period, through carelessness, rendered different tracts, and, intending to pay the taxes for that year on the land in controversy, paid the taxes on the land that was assessed in accordance with his rendition, did not show compliance with the statute, and he could not recover as against one holding the superior record title.</p> <p>3. —Payment of Taxes—Evidence.</p> <p>Payment of taxes is an act in pais, which may be proved not only by the record but by the original receipt or by any other evidence which satisfies the jury of the fact.</p> <p>4.—Same—Assessment for Taxes.</p> <p>Where the assessment wholly fails to lead to the identification so that neither the owner nor the officer can tell that his land is taxed, the duty of payment cannot be performed, and the assessment is void; and it follows that payment could not be made by the owner under an assessment shown by the records of the assessor’s office, by the description in the tax rolls, to have been upon entirely different tracts of land from those claimed by him.</p>

<p>1. —Deposition—Suppression—Failure to Answer Question.</p> <p>The overruling of a motion to quasii a deposition because of the failure of the witness to answer a part of a question on cross-examination (whether any one had previously informed her of the substance of the interrogatories) is held to present no ground for reversal, it not appearing, in the state of the evidence, that it had materially prejudiced the appellant, nor that the discretion of the trial court was abused.</p> <p>2. —Evidence—Conclusion of Witness.</p> <p>Testimony that there was no cause known to the witness, other than the injuries for which recovery was sought, to account for the change in the health and disposition of plaintiff which he had testified to as following such injuries, was admissible over objection that it was a mere conclusion.</p> <p>3. —Charge—Omission.</p> <p>Errors of omission in the general charge of the court are cured by giving charges on the subject requested by appellant.</p> <p>4. —Negligence—Proximate Cause—Contributory Negligence.</p> <p>The act of a railway in leaving a. caboose obstructing the crossing of a public road .and in constructing a ditch rendering it more hazardous, held to support a finding of negligence and of its proximate connection with- the injury of one whose horse, taking alarm at the caboose, ran into the ditch, and threw him out of his vehicle. Also held to disclose no such danger in the act of attempting the crossing as to necessarily tax him with contributory negligence.</p> <p>5. —Railway Crossing—Impairing Highways.</p> <p>The construction of a ditch by a railway at a crossing which unnecessarily impairs the usefulness of the highway is made unlawful by statute (Rev. Stats., art. 4426) and is a ground for action for injuries caused thereby; such liability does not depend on what a man of ordinary prudence would do with reference to construction of such ditch.</p>

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

<p>1. —Conversion—Definition—Defense.</p> <p>Any distinct act of dominion wrongfully exercised over one’s property in denial of his right or inconsistent with it, is a conversion. A wrongdoer cannot question the possessor’s title or right of possession nor defeat recovery by showing that the taking was in good faith and under mistake.</p> <p>2. —Sequestration—Void Writ—Trespass—Damages.</p> <p>Authority cannot be conferred on a sheriff by a writ of sequestration to remove from land in controversy the houses and property thereon in the possession of the defendant, and therefore the situation of the sheriff and all parties acting with him under such writ in so doing would be as if no writ had ever issued so far as their liability for actual damages was concerned.</p> <p>3. —Conversion—Offer to Return.</p> <p>When the acts of the defendant amount to a conversion of the property in question, the owner has the right to so treat it, and to sue for its value, and is not required to accept it if the wrongdoer thereafter offers to . return it.</p> <p>4. —Trespass—Exemplary Damages—Irrelevant Evidence.</p> <p>Where, in executing a writ of sequestration, the sheriff removes the defendant and his property from a lot known as No. 6, to and upon a lot known as No. 5, and in so doing claimed to act exclusively under and by virtue of the command of said writ, the court properly excluded, as irrelevant and immaterial upon the issue of exemplary damages, evidence tending to prove that the defendant had no title to Lot No. 5 and was wrongfully in possession thereof.</p> <p>5. —Sequestration—Exemplary Damages—Evidence.</p> <p>In a suit against a sheriff and his bondsmen for damages for executing a writ of sequestration, evidence considered and held sufficient to support the verdict of the jury for both actual and exemplary damages.</p> <p>6.—Same—Damages—Defense.</p> <p>The fact that a judgment was afterwards rendered in plaintiff’s favor against the defendant for the title and possession of the land in controversy, is no defense to a suit by the defendant against the plaintiff for damages for dispossessing the defendant under a void writ of sequestration.</p>

<p>1. —Railroad—Damage by Eire—Assignment of Error.</p> <p>In a suit against a railroad company for damages for the destruction of an asparagus bed caused by fire which defendant negligently permitted to escape from one of its engines, under an assignment of error that there was “no evidence” as to the value of the asparagus bed, the Appellate Court is not required to determine the sufficiency of the evidence to support the verdict. Evidence considered and held sufficient to show that the asparagus bed had some value.</p> <p>2. —Same—Damages—Pleading—Charge.</p> <p>Where the evidence tends to show that the damage is greater than that claimed in the petition, it is reversible error for the court to fail to limit the amount of the recovery to that alleged.</p> <p>3. —Same—Destruction of Orchard—Measure of Damages.</p> <p>The true measure of damage for the total destruction of an orchard growing upon land is the difference in value of the land just before and just after the loss.</p> <p>4. —Appeal—Costs.</p> <p>When a reversible error in the charge of the court is not called to the attention of the court in the motion for new trial, the cost of the appeal should be taxed against the appellant.</p>

<p>1.—Insurance Contract—Construction.</p> <p>In construing the language used in insurance contracts the following rules should be observed: First, the language being selected and used by the insurer to express the terms and conditions upon which it issued the policy, will be strictly construed against it, and liberally in favor of the insured; if the words admit of two constructions, that one will be adopted most favorable to the insured; second, the language used must be construed according to .the evident intent of the parties to be derived from the words used, the subject matter to which they relate, and the matters naturally or .usually incident thereto; third, forfeitures are not favored by the law, and if the language used is fairly susceptible of an interpretation which will prevent a forfeiture, it will be so interpreted.</p> <p>2. —Same—Warranty.</p> <p>In an application for life insurance, the insured stated, in answer to questions propounded to him, that he had never been intoxicated and that hi's maternal grandmother had never been afflicted with insanity. The application was made a part of the policy and said statements as well as many others of like character were declared to be warranties upon the truth of which the validity of the policy should depend. In a suit upon the policy the jury found that said statements were not true. The trial court held that said statements were misrepresentations of facts which, under the warranty clause of the contract of insurance, rendered the policy void. Held, error. Said statements were not statements of facts but of opinion merely, and if the applicant in good faith believed them to be true their falsity would not vitiate the policy.</p> <p>3. —Same—Insanity—Drunkenness—Opinion.</p> <p>Insanity and drunkenness are conditions each of which is of different degrees, often difficult of ascertainment, and it is elementary that testimony to prove the existence of such conditions is that of opinion formed by the exercise of the reasoning faculties from given circumstances, and is never admissible unless the witness is an expert, or has had an opportunity to form an opinion from observations of the person whose condition in that respect is to be ascertained.</p> <p>4. —Insurance Policy—Warranty—Definition Approved.</p> <p>A warranty in an insurance contract is a statement made therein by the assured which is susceptible of no construction other than that the parties mutually intended that the policy should not be binding unless such statement be literally true.</p> <p>5. —Same—Warranty—Materiality.</p> <p>The warranty clause in an application for life insurance contained the following language: “And I agree that the exact literal truth of each (answer) shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers.” Intimated, that by the use of the word “faith” in the provision quoted, the correct construction of that stipulation would be that in order ror the insurance company to defeat the policy by reason of misrepresentations contained in the applicant’s answer, it would be required to prove that its officers believed such answers to be true and that such belief so formed was one of the inducements which led them to issue the policy. To say that proof of falsity of some of the answers of the applicant would show breach of his contract of warranty and entitle the company to a judgment decreeing the policy void irrespective of any other consideration, would be to ignore altogether the above quoted stipulation in the application.</p>

<p>Original proceeding for mandamus.</p>

<p>1. —Charge—Absence of Statement of Facts—Practice in Courts of Civil Appeals.</p> <p>In the absence of a statement of facts the Appellate Courts will not pass upon the correctness of charges given or refused. An exception to the rule is where the charge given, taken in connection with the pleadings and verdict, is so apparently erroneous as to leave no doubt but that the finding of the jury must have been controlled by the improper instruction.</p> <p>2. —Arrest without Warrant—Duty of Officer—Statute—Reasonable Time.</p> <p>The statute requiring that the officer making an arrest without warrant shall “immediately” take the prisoner before the nearest magistrate where the arrest is made, contemplates that this must be done within a reasonable time after the arrest. Code Grim. Proc., art. 252.</p> <p>3. —Charge—False Imprisonment.</p> <p>Where, in an action against a sheriff for false imprisonment under an arrest without warrant, it was admitted that the arrest was authorized, and the verdict for defendant, under the issues submitted in the charge and authorized by the pleadings, embraced a finding that the sheriff within a reasonable time took the plaintiff before the grand jury then in session, who examined into the charge and the prisoner was released as soon as it could have been done had he been taken before the nearest magistrate, it did not appear, in the absence of a statement of facts, that the finding must have been controlled by improper instructions.</p>

<p>1. —Res Adjudícala—Decree in Probate Against Administrators in Favor of one Administrator as Heir—Reservation of Equities.'</p> <p>A decree of the Probate Court ordering distribution and closing the administration, adjudging one of the two administrators to be entitled to a certain sum as an heir, and directing the administrators to pay said sum but declaring that such decree should not affect in any manner any claim, demand, equity or right which either administrator might have against the other as such in or concerning any matter growing out of or resulting from the administration, nor be a bar to any claim, demand or right that might thereafter be asserted by either in any suit between them, only fixed the interest of such heir in the estate as against the other heirs, and was not a conclusive adjudication of his right to recover one-half of the sum against his co-administrator.</p> <p>2. —Damages—Estoppel—Participation in Wrongful Act.</p> <p>One cannot recover damages for a wrongful act in which he actively participates without being induced so to do by fraud or misrepresentation.</p> <p>- 3.—Same—Administrators—Joint Wrongdoers.</p> <p>Where one administrator acted with his co-administrator in the sale of certain bonds belonging to the estate, he could not as heir recover from such co-administrator for loss occasioned him as heir because of the wrongful sale of said bonds for less than their reasonable value.</p>

<p>1. —Verdict—Special Issues—Judgment—Presumption.</p> <p>When a Case is submitted upon special issues, such facts as are necessary to support the judgment, although not embraced in the special issues submitted nor the verdict rendered thereon, will be presumed to have been found by the trial court, if warranted by the evidence.</p> <p>2. —Pleading—Express Contract—Quantum Meruit.</p> <p>In an action for a share of profits derived from a sale of land wherein plaintiffs allege an express contract with defendants to share the profits but also set out all of the facts attending the transaction, and prayed in the alternative for the value of their services rendered in effecting, a sale, pleading and evidence considered, and held that plaintiffs were entitled to recover on their alternative prayer although the jury found that an express contract to share the profits existed between the parties.</p> <p>3. —Contract—Breach—Liability,</p> <p>Plaintiffs and defendants were engaged as separate firms in the sale of lands; they entered into an agreement to mutually assist each other in effecting sales and to share the profits; defendants found a tentative purchaser for a tract of land for which plaintiffs were agents and, with the assistance of plaintiffs, effected a sale, but pending the negotiations defendants bought the land directly from the owner, intending to convey the land themselves to the purchaser and thus defeat plaintiffs’ claim to a part of the profits. Held, the fact that plaintiffs tried to prevent the owner from conveying the land to the defendants would not affect their right to compensation from the defendants for the value of the services rendered in effecting a sale to the purchaser.</p> <p>4. —Quantum Meruit—Verdict without Evidence.</p> <p>Where, in an action for the value of services rendered, all the details of the transaction are proved, and the nature of the transaction and of the services rendered are such that the jury could, from their own knowledge, form an intelligent judgment of the value of the services, the fact that there was no evidence introduced as to the value of the services would not be sufficient cause for setting aside a verdict in plaintiff’s favor.</p> <p>5. —Same—Sale of Land—Evidence.</p> <p>Under an assignment that a verdict was excessive in awarding compensation for services rendered in effecting a sale of land, evidence considered, and held sufficient to support the verdict.</p> <p>6. —Evidence—Copy of Deed, Competent when.</p> <p>Upon an issue as to the number of acres sold and the prices obtained, certified copies of the deeds are competent evidence when offered in connection with the testimony of the grantor that the sales were made as therein recited.</p> <p>7. —Contract—Breach—Profits—Fraud—Expenses.</p> <p>In an action by one party to a contract against the other for a share of the profits made thereunder, the defrauding party cannot deduct from the gross profits the expenses incurred by him in trying to defraud the other party.</p>

<p>1. —False Imprisonment—Arrest without Warrant—Breach of Peace.</p> <p>A peace officer, or any person, may, without warrant arrest one guilty of a breach of peace in his presence. (Code Grim. Proc., art. 247.)</p> <p>2. —Same.</p> <p>A station agent in whose presence a breach of the . peace was committed in the waiting room of a passenger station, having the right to arrest without warrant, had the right to cause the offender to be so arrested by a policeman coming in a few minutes later, though the offense was not committed in the presence of the officer.</p> <p>3.—Evidence—Opinion—Public Disturbance.</p> <p>On the issue as to whether plaintiff had been lawfully arrested for a breach of the peace by cursing in the passenger waiting room of a railway station, it was competent for a witness to testify that ladies present shrunk back and appeared to hear the language, and that it-was loud enough for them to hear.</p>

<p>Appeal from the County Court of McLennan County. Tried below before E. C. Street, Esq., Special Judge.</p>

<p>1. —Trespass to Try Title—Warrantor—Appeal Bond—Obligees.</p> <p>Where, in trespass to try title, the warrantor of the defendant’s title is a party defendant and the judgment is in defendant’s favor, the warrantor is a necessary obligee in the appeal bond.</p> <p>2. —Appeal—Practice—Hew Appeal Bond.</p> <p>When an appeal bond is defective in that it is not made payable to all the parties interested in the judgment appealed from, a new appeal bond may be filed within the time and upon terms specified by the Appellate Court.</p> <p>3. —Trial without Jury—Judgment—Presumption.</p> <p>When a case is tried before the judge without a jury and the judge does not file his conclusions of fact, the Appellate Court will adopt and take as true any theory or state of facts which finds support in the evidence favorable to the judgment.</p> <p>4. —Statute of Limitation—Enclosure without Use.</p> <p>The enclosure of land without use of the same is not sufficient to set the statute of limitation in motion against the owner.</p> <p>5. —Limitation—Use and Possession—Evidence.</p> <p>Under a plea of title by limitation under the ten years statute, evidence as to the possession and use of the land in controversy, considered, and held sufficient" to support a finding in favor of such plea.</p> <p>6. —Trial with'out Jury—Credibility of Witness.</p> <p>A trial judge sitting without a jury must pass upon the credibility of the witnesses, and, when the evidence is conflicting, his findings of fact although contrary to the positive testimony of one or more witnesses will not be disturbed by the Appellate Court, especially when said testimony relates to a conversation which took place many years before, and the other party to the conversation is dead.</p> <p>7. —Title—Inventory of Estate as Evidence.</p> <p>The fact that a certain tract of land was not included by an administrator in the inventory of the estate, is not' conclusive evidence that the decedent did not claim title thereto. Such fact is a mere circumstance to be considered by the jury upon an issue as to title or claim.</p> <p>8. —Limitation Against Heirs.</p> <p>When the statute of limitation has begun to run against an ancestor, it will continue to run against his heirs after his death, notwithstanding disabilities of the heirs.</p> <p>9. —Limitation—Will—Executor—Devisee.</p> <p>Where a testatrix designated her executor as a “trustee,” and stipulated in the will that the property devised to her children should not vest in them but should be “retained” and “kept” by her executor or trustee; that the executor or trustee should distribute the property among the devisees at a time named, and said executor or trustee was given full discretion in the control and management of the property, with power to sell and convey the same, it will be held that the will vested the title to the property in the executor, and that the statute of limitation would run against the title of the devisees while the property was in the hands of the executor.</p>

<p>1. —Evidence—Photograph.</p> <p>In an action for personal injuries, a photograph of the injured person taken two months before the injury in connection with testimony that it was a good likeness at the time it was taken, and that his physical condition at the time of the injury was the same as when the picture was taken, was admissible in evidence, his physical condition before and after the accident being an issue in the case.</p> <p>2. —Witness—Competency—Evidence.</p> <p>One is competent to testify that a photograph of himself is a correct likeness.</p> <p>3. —Evidence—Rule of Railway Company—Pleading—Negligence.</p> <p>Where the railway company was charged with negligence in that the train was suddenly, violently and negligently stopped by application of the emergency brake, and it was alleged that such application has the effect practically to„lock the wheels of the engine and cars and stop same from revolving and suddenly stopping the train, and produces a violent and sudden jerk and jar, a rule of the company stating that “on a long train, if an engine-man’s brake-valve be opened suddenly and wide, allowing the pressure .to escape quickly, the brakes will be set on the front end sometime before those on the rear end, causing a severe shock on the train; then if the valve be closed quickly without giving time for the pressure to be equalized throughout the entire train, the forward brakes will become released, causing further severe shocks,” was admissible in evidence in connection with proof that the emergency brakes were applied, as tending to prove the allegations. It was not necessary to plead the rule in order to use it, unless the action was predicated on its violation.</p> <p>4. —Negligence—Operation of Trains—Railways—Charge.</p> <p>Under allegations that it was the duty of the engineer in taking a siding, as the train in question was doing, to go slowly and to have the train under full control by entirely cutting off the steam or reducing the steam pressure, owing to the grade, and by reducing the air pressure a little at a time, which is the usual, customary and proper mode, which produces no' jolt or jar, and proof that the engineer had not complied with his duty, but had seventy or eighty pounds of air pressure, and suddenly and violently threw that pressure on the wheels, the court was authorized to submit the issue of negligence on the part of the engineer in failing to so handle or control his engine as to be able to stop the train and avoid a collision by making a “service application of air” and service stop.</p> <p>6.—Same—Charge—Omission in Charge—Definition of Terms.</p> <p>Allegations as to the “usual, customary and proper mode” of application of air justified the use in the charge of the term “service application of air;” and the failure to define or explain the term did not constitute error, in the absence of a request for a charge supplying the omission.</p> <p>6. —Same—Operation of Train—Sudden Stop to Avoid Collision.</p> <p>Where the pleading and evidence showed that the engineer ran his train on the sidetrack at too great a rate of speed and did not keep a proper lookout for obstructions, and that, not having his train under proper control, he ran it so close to a car on the siding as to render necessary the application of the emergency brakes which caused injury to the plaintiff, the court properly instructed that unless the engineer had been guilty of negligence as alleged, there could be no recovery, and charges taking the case from the jury and instructing that negligence was not inferable from the mere happening of the accident, were properly refused.</p> <p>7. —Evidence—Answers not Responsive—Excluded Testimony.</p> <p>When the trial court excludes the answers of a -witness on objection that they are not responsive to the questions, and instructs the jury not to consider same, the Appellate Court will presume that the jury obeyed the instruction.</p> <p>8. —Same—Gratuitous Remarks of Witness.</p> <p>When the remarks of a witness are gratuitous, not called for by the questions, the party asking the questions will not be held responsible, especially where the court has rebuked the witness and withdrawn the statements from the jury.</p> <p>9. —Verdict—Personal Injuries.</p> <p>Evidence considered, and verdict awarding fifteen thousand dollars for personal injuries held not excessive.</p> <p>OK REHEABIKO.</p> <p>10. —Motion for Rehearing—Charge—Practice.</p> <p>Objections urged to the charge which do not raise questions going to the foundation of the action, will not be reconsidered on a second motion for rehearing.</p>

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

<p>1. —Master and Servant—Vice-Principal.</p> <p>One having authority from the master to employ and discharge other servants is, as to them, a vice principal; but one having merely authority to direct them in their work is such vice principal only in such acts of direction; and as to acts done merely in laboring with them he is a fellow servant for injury by whose negligence they cannot recover under the common law rule.</p> <p>2. —Same—Negligence of Fellow Servant—Charge.</p> <p>An instruction denying a servant the right to recover for injuries if they were proximately caused by- negligence of a fellow servant is correct, in the absence of evidence tending to show that negligence of one acting as a vice principal also proximately contributed to cause the injury.</p> <p>3. —Same.</p> <p>Evidence considered and held to show no negligence contributing to cause the injury on the part of defendant’s foreman in directing the work which would render improper a requested charge relieving defendant from liability if it was proximately caused by negligence of fellow servants.</p> <p>4. —Negligence—Pleading.</p> <p>A general allegation of negligence, followed by specification of particular acts or omissions, will, it seefns, be construed as limited to the matters specified unless an intention not to so limit it appears.</p>

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

<p>1. —Railway—Overflow—Statute—Contract—Pleading.</p> <p>Plaintiff, alleging the conveyance of a right of way across its land to defendant railway company on consideration of the grantee agreeing to maintain existing drainage and irrigation ditches, set up the construction by defendant of its roadbed without culverts and sluices for the necessary drainage thereof by the natural lay of the land, and the flooding and destruction of his growing crop thereby. Held that the petition declared on was supported by proof and findings by the court of a violation by defendant of its statutory duty to provide for the natural drainage, though not of its contract obligation.</p> <p>2. —Same—Contract.</p> <p>The agreement, by a railway purchasing the right of way across land, to maintain the existing drainage and irrigation ditches thereon, did not relieve the company from its statutory obligation with reference to constructing its road with tlie culverts and sluices necessary for the natural drainage.</p> <p>3. —Overflow—Injury to Crop—Damages.</p> <p>The measure of damages for wrongful destruction of plaintiff’s growing crop was its value at the time of destruction, and for its injury the difference between its value before and that after the injury; but in arriving at such value it is proper to consider the degree of maturity and probable yield of the crop, the cost attending its future growth and marketing, and the price which it would then have yielded if not destroyed or injured; and the enumeration by the court, in its findings of the facts proven in regard to these matters does not show that his finding of the extent of the damages, arrived at by this means, was based on an improper view of the measure of damages.</p>

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