Volume 59 — Texas Civil Appeals Reports

<p>1. —Trespass—Joint Tort Feasors—Liability.</p> <p>The act of entering and building a fire in a house, although the same was open and unoccupied, without the consent of the owner, is a trespass and would render any and all parties participating therein or aiding, abetting, inciting, encouraging or directing the same by conduct or words, liable for the consequences proximately resulting therefrom, as, for instance, the burning of the building; and this, without regard to any question of negligence .on their part. Nor did it matter that other persons on other occasions had committed trespass by entering and using the same house without the owner’s consent.</p> <p>2. —Same—Destruction of House—Measure of Damage.</p> <p>In a suit for the value of a house set on fire and destroyed by trespassers, the measure of damage would be the difference between the value of the premises just before and just after the destruction of the house. Where the house was old, testimony as to the price of new lumber would be irrelevant.</p> <p>3. —Same—Ownership—Evidence.</p> <p>In a suit against trespassers for the value of a house burned by them, the owner may give oral testimony.as to his ownership.</p> <p>4. —Appeal—No Brief for Appellee—Practice.</p> <p>In the absence of a brief for appellee the appellate court may take as true the statement from the record in appellant’s brief as to the evidence and that it constitutes all the evidence in support of the verdict.</p> <p>5. —Tort—Insufficient Evidence.</p> <p>In a suit against several trespassers for the value of a house alleged to have been burned by them, evidence reviewed and held insufficient to connect appellant, one of the trespassers, with the making of a fire in the house which caused the house to burn. The mere statement by the witnesses that “they” or “we” did or said so and so, with nothing to indicate that it referred to all of the party, would not be sufficient to support a verdict against any particular one.</p>

<p>Vendor and Vendee—Contract—Abstract of Title.</p> <p>Where the evidence shows affirmatively that in the contract for the sale of land the vendor did not agree to furnish to the vendee an abstract of the title, his failure ■ to furnish such abstract was not a breach of his contract to sell, and upon refusal by the vendee to take and pay for the land, the vendor was at liberty to sell to any other party.</p>

<p>1.—Nuisance—Abatement—Material Injury.</p> <p>In order for an individual to obtain equitable relief for abatement of a public nuisance, such as an encroachment upon the sidewalk by a building of a proprietor of lots adjoining his own, he must show a substantial and special injury to him thereby, different from that to the public generally.</p> <p>2.—Same—Finding by Jury—Case Stated.</p> <p>The proprietor of a city. lot and business house sued the city and an adjoining proprietor for the abatement of a nuisance created by the latter, with acquiescence of the city, in erecting a show window in front of his establishment, encroaching fifteen inches upon the sidewalk and alleged to interfere with travel thereon and with the view into and from plaintiff’s establishment. Held that, in the absence of a statement of facts, a finding of the jury that the structure complained of did not materially depreciate the market or rental value of plaintiff’s premises was conclusive upon the appellate court, and was ground for denying the relief sought, though some interference, of the character alleged, necessarily resulted from such structure.</p>

<p>Nuisance—Abatement.</p> <p>A horse which, the owner being absent, became down and helpless in a livery stable with an incurable disease and offensive to the neighborhood, constituted a nuisance which demanded abatement, and neither the city, its officers, nor individuals, incurred liability to the owner by having it killed and the body removed and burned.</p>

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

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

<p>1. —Sale of Land—Rescission.</p> <p>It is a general rule in this State that when a vendor of land has received part of the purchase money and gives indulgence after default in payment of another part of the purchase money, there must be a demand of payment and notice of an intention to rescind the contract before advantage could be taken of the default and a rescission had.</p> <p>2. —Same.</p> <p>The remedy by rescission of a contract for the sale of land is not favored, and slight circumstances, when indicative of a purpose not to insist on that remedy, may be treated as a waiver of the right.</p> <p>3. —Same—Case Stated.</p> <p>A note was given for part of the purchase money of land in 1897 and became due in 1899; the payee lived in a foreign country and it was not known by the payor where the note was kept; after the lapse of nine years demand was made by letter for payment, to which the payor replied promising to give the matter attention in a few days; thereupon payee brought suit for collection of the note, and the payor came into court and offered to pay the note, less the interest which payor claimed had been waived by the original vendor, the plaintiff then changed the suit to one of rescission and for recovery of the land. Held, the defendant was not in default and the recovery should have been denied.</p> <p>4. —Same—Right to Defend.</p> <p>The mere fact that a vendee or one holding under him denies the right of the vendor to recover the full amount sued for would -not give the vendor the right to rescind the contract of sale.</p> <p>5. —Same—Tender—Offer to do Equity.</p> <p>An offer by defendant to do equity, when sued for a balance of purchase money of land, is sufficient to defeat a rescission although no money was actually paid into court.</p> <p>6. —Tender.</p> <p>When the plaintiff in a suit upon a purchase money note does not pray for attorney’s fee, a tender by the defendant need not include such fees.</p> <p>7. —Contract—Waiver of Interest.</p> <p>The words “without interest” in a note or other contract mean only that no interest shall be charged until after maturity; thereafter the legal rate will be charged.</p>

<p>1. —Accident Insurance—Voluntary Exposure to Danger.</p> <p>An accident insurance policy contained a stipulation that where the accidental injury resulted from “voluntary exposure to unnecessary danger or obvious risk of injury,” the amount payable should be one-fourth of the amount which otherwise would be payable; in an action upon the policy the evidence showed that the assured was an experienced railroad employee in active service on and about railway trains; that on the occasion of his death he was a passenger on a railway train which was nearing a station and was moving at about six miles an hour when he opened the trap door of a vestibuled coach, and as he started down the steps of the coach his feet seemed to slip and he fell 'off the train and was killed. Held, a peremptory instruction for the defendant was properly refused because (1) the evidence did not show that the deceased was killed while in the act of alighting from a moving train; and (2) if it did, it would not follow as matter of law that the deceased voluntarily exposed himself to danger. Whether or not there was obvious risk of injury to the deceased under all the circumstances, was a question of fact for the jury.</p> <p>2. —Same.</p> <p>By the expression “voluntary exposure to unnecessary danger or obvious risk of injury” as used in a policy of accident insurance, is meant that the danger must be one so logically attending the act that the assured must be conscious of it.</p> <p>3. —Same—Charge.</p> <p>The expression “unnecessary exposure to danger” has not the same meaning as ‘voluntary exposure to unnecessary danger.”</p> <p>4. —Trial—Improper Argument—Practice.</p> <p>Although not controlling in every ease, it is the rule that when the trial court instructs the jury to disregard an improper argument and the counsel making the argument withdraws the same and asks the jury not to consider it, the argument is not sufficient cause for reversing the judgment.</p>

<p>Appeal from the District Court of Hopkins County. Tried below before Hon. R. L. Porter.</p>

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

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

<p>Appeal from the District Court of Haskell County. Tried below before Hon. C. C. Higgins.</p>

<p>Appeal from the District Court of Eastland County. Tried below before Hon. Thomas L. Blanton.</p>

<p>1. —Appeal—Transcript—Unnecessary Papers.</p> <p>Abandoned pleadings as such form no part of the pleadings necessary or proper to be incorporated in the transcript on appeal, and the appellant may be charged with the cost of incorporating them. And so of improper bills of exception and cross assignments of error.</p> <p>2. —Bill of Exception by Bystanders—Statute.</p> <p>Under the provisions of articles 1360, 1366, 1367, 1368 and 1369, Rev. Stats., only the party excepting to the ruling of the court and dissatisfied with the bill of exception which the trial judge is willing to give, may resort to a bill of exceptions by bystanders. It was not intended that the party in whose favor the ruling was made should prove, up a bill of exception reflecting his version of what occurred and the court’s ruling thereon. Nor does the fact that the judge failed or refused to submit to the adverse party the bill prepared by the party taking it, authorize such procedure.</p> <p>3. —Appeal—Transcript—Cross Assignments.</p> <p>Neither the statute nor the rules contemplate that cross assignments of error should be incorporated in the transcript on appeal.</p> <p>4. —Band Agent—Express Contract—Pleading.</p> <p>Pleading and evidence considered, and held to be based upon and to show an express contract to pay a certain commission for the sale of land.</p> <p>5. —Joint Obligation—Several Biability.</p> <p>Where two or more men make a joint promise, each is liable, to the promisee for the whole debt or liability. This is true in a joint obligation as well as in a joint and several obligation.</p> <p>6. —Same—Cases Distinguished.</p> <p>Rpeake v. White, 14 Texas, 365, and Willis v. Morrison, 44 Texas, 27, distinguished.</p> <p>7.—Appeal—Assignment of Error.</p> <p>An assignment of error based upon two different statements made by counsel in his argument to the jury, and involving the decision of two separate and distinct questions, is not in accordance with the rules regulating the briefing of eases on appeal and is therefore not entitled to consideration.</p>

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

<p>1.—Negligence—Contributory Negligence—Person Insensible on Railway Track.</p> <p>Evidence considered and held to support a verdict for defendant in a case where one lying insensible upon a railway track at a point remote from stations was struck and injured by a train.</p> <p>2. —Same—Charge.</p> <p>One falling insensible upon a railway track, without negligence, would not be precluded from recovery for injury caused by negligence of those operating a train, as by their failure to keep a lookout for persons on the track where the circumstances require such lookout as an exercise of ordinary care. But if the injured person knew himself to be liable to sudden attacks of unconsciousness and his act in entering and walking along the track with such knowledge be found to be negligence, then, if rendered insensible there by such weakness, his negligence would prevent his recovery for injury caused to him in such situation by defendant’s negligent failure to discover him in time; defendant in such case could become liable only under the rule applicable in cases of discovered peril. See charges approved as a correct presentation of these principles.</p> <p>3. —Negligence—Speed of Train—Charge.</p> <p>A railway has the right to run its train at such speed as it chooses at points between stations, so far as concerns the rights of trespassers or licensees walking or lying on its track. See charge to this effect approved.</p> <p>4. —Contributory Negligence—Sleeping on Track.</p> <p>One voluntarily lying down to sleep on a railway track is guilty of negligence precluding his recovery for injuries caused by negligence of those operating trains thereon. Charge approved and held warranted by evidence.</p> <p>5. —Same—Liability to Attacks of Unconsciousness.</p> <p>Evidence considered and held sufficient to raise and require the submission of the issue as to contributory negligence by plaintiff in entering on and walking along a railway track with knowledge of his liability to attacks rendering him unconscious.</p>

<p>1. —Easement—Prescription.</p> <p>Evidence to show an easement in plaintiff upon a lot conveyed by him to defendant for its use for access to his own adjoining lot and as an alley or passway for the public, considered and held insufficient to show such easement either by dedication, prescription or estoppel, and which warranted a peremptory instruction for defendant.</p> <p>2. —Prescription—W av.</p> <p>Use of a vacant city lot by pedestrians in “cutting across lots” between certain points, could not be considered adverse to the owner where there was no evidence that it was done in the assertion of a right.</p> <p>3. —Estoppel.</p> <p>One permitting without objection the owner of a lot adjoining his own to let same to a tenant for building, and the tenant to erect a permanent and valuable brick building thereon would seem to be estopped from subsequently asserting against them an easement in the lot requiring the removal of such building.</p> <p>4. —Written Instrument—Parol Evidence to Alter.</p> <p>One conveying a lot to another by unqualified deed in fee simple, can not alter its effect by showing that the grantee represented that the property was to be used only in a certain way, as that it was to be left open and used only for railroad purposes, whereby the public could have access to the grantor’s premises across the lot conveyed.</p> <p>5. —Eailway—City Ordinance.</p> <p>A city ordinance imposing upon a railway regulations in regard to the use of its own property as a condition of a grant of certain rights by the city, is ineffective where the ordinance was not accepted by the company.</p> <p>6. —Assignment of Error,</p> <p>An assignment of error not found in the record nor presenting fundamental error, but raised for the first time in the brief, will not be considered.</p>

<p>1. —Evidence—Opinion—Probable Conduct.</p> <p>The probability of a person acting in a certain way under given circumstances is not a question on which opinion evidence is receivable.</p> <p>2. —Same—Case Stated—Contributory Negligence.</p> <p>A servant employed about a pile driver was killed by the descending hammer slipping past the head of the pile, which had got out of line, and striking a stick with which lie was trying to push the pile back into place. Issue being raised as to his contributory negligence in using the stick for such purpose in a certain manner after being warned of the danger in so doing, it was improper to permit a witness to give his opinion as to the probability of deceased so doing after receiving sueli warning.</p>

<p>1. —Assumed Bisk—Knowledge and Complaint of Defect.</p> <p>The servant does not assume the risk of defect in the appliances of the business (absence of lock on a railway switch) by knowledge of and failure to report such defect, when it is also known to the master or his employee charged with the duty of repair.</p> <p>2. —Same—Continuing in Service.</p> <p>The servant of a railway company does not assume the risk of injury from a defect in the machinery known to him, by continuing in his employment with such knowledge, unless such course involved a lack of ordinary care on his part. (Act of April 24, 1905, Laws 29th Leg., p. 386.)</p> <p>3. —Damages—Personal Injury.</p> <p>A recovery of $7,500 sustained as not excessive in case of painful and permanent injuries to a brakeman, a young man earning $100 per month and in line for promotion.</p>

<p>1. —Contract—Minority—Disaffirmance.</p> <p>Contracts by minors are not void because of nonage but voidable merely; and such contracts as are made for the reasonable value of necessaries and in pursuance of statutory authority are binding. Some voidable contracts of a minor bind him unless he disaffirms them, while others do not bind him unless he ratifies them. Such voidable contracts as are wholly or partially executed need no ratification but are binding until disaffirmed. This principle applies when an interest in property of a fixed and permanent nature is vested in the minor or other party under an executed contract, as by a conveyance of real estate. In such case there must be a distinct act of disaffirmance on the part of the minor, and that within a reasonable time after attaining majority; what is a reasonable time is a question of fact.</p> <p>2. —Same—Case Stated.</p> <p>A minor purchased a tract of land paying part cash and executing his promissory notes for the balance, the notes being secured by express lien; the notes matured about six months after the minor came of age and suit was soon thereafter filed upon them; the minor answered setting up his minority at the time the contract of purchase was made, and prayed that the contract be cancelled and that he have judgment in reconvention for the cash payment. Held, that the minor did not disaffirm the contract in a reasonable time and was liable on the notes.</p>

<p>1.—Homestead—Surviving Husband—Attachment Lien.</p> <p>Where the surviving husband, there being no children, is no longer the head of a family, although entitled to occupy the homestead, it is protected from forced sale, even subject to his homestead rights; and this protection extends to and forbids sale under foreclosure of the lien of an attachment against him as well as sale under execution.</p> <p>■3-—Same.</p> <p>The levy of an attachment writ is a step in the course of securing a forced sale, and does not create a lien which might be enforced against the homestead.</p> <p>3.—Same—Contract Lien Distinguished.</p> <p>The fact that the claimant of homestead rights, a husband without children after the death of the wife, has the right to sell or mortgage it, and that such mortgage lien may be enforced subject to his homestead rights, presents a different case from that of sale under execution or attachment lien. Harle v. Richards, 78 Texas, 80 distinguished.</p>

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

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

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

<p>Deed—Sale of Timber—Construction.</p> <p>By a deed the owner of land sold and conveyed “all the pine timber twelve inches in diameter at the stump, now standing, growing and being situated upon” the land, the purchaser to have ten years in which to cut and remove the timber. Held, the purpose of the contract was to convey to the purchaser all pine timber of the dimensions of twelve inches and over at the stump, and not merely such timber as was exactly twelve inches.</p>

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

<p>1.—Life Insurance—Bayment of Dues—Evidence.</p> <p>The issue being whether certain dues were paid within the time stipulated in the contract of insurance in a benevolent order, it was error to exclude the notice and proofs of death furnished by the beneficiary to which was attached the affidavit of the finance keeper of the lodge, to which the insured belonged, reciting the date when said dues or assessments were paid, the objection to said evidence being that it was hearsay as to the beneficiaries. Said papers were admissible as representations by the beneficiaries.</p> <p>2. -—Testimony—Cross Examination—Change in Testimony.</p> <p>Where a plaintiff on the second trial of a cause had changed his testimony as to certain material dates, it was permissible for the defendant to ask him on cross examination if he had not changed his testimony as to said dates because on the first trial the jury had returned a verdict against him. The mere fact that the result of the first trial would thus incidentally be made known to the jury would not warrant the court in denying the defendant the right to prove that the plaintiff had changed his testimony in the belief that the verdict would also be changed. The broadest latitude should be allowed on cross-examination of an interested witness.</p> <p>3. —Husband and Wife—Agency—Admissions by Husband.</p> <p>A husband is so far the agent of the wife when engaged in the management of her property that statements and admissions by him may be received in evidence as admissions against her interest.</p>

<p>1. —Homestead—Abandonment—Sale.</p> <p>The facts that the husband contracted for, made a partial payment upon, and received a deed to A tract of land, and that he and his wife thereafter-moved from the old homestead to the land so acquired with the intention of making the same their homestead, constituted an abandonment of the old homestead, and a sale of the same thereafter at the instance of the husband by a trustee to whom it had been conveyed as security for debt while occupied as their homestead, would pass title to the same as effectually as if conveyed by the" husband and wife themselves, and the fact that the new homestead was lost because of inability to pay for the same, would not affect the question.</p> <p>2. —Same—Sale by Husband.</p> <p>In the absence of such fraud upon the wife as would entitle her to a rescission, a sale of the homestead by the husband alone would become effective to convey title when thereafter abandoned as a homestead.</p> <p>3. —Same—Disposition of Proceeds by Husband—Consent of Wife.</p> <p>The husband has the right to control the proceeds of the sale of a former homestead, and in the absence of such a fraud practiced upon the wife as would entitle her to a rescission of the conveyance of the former home, the husband has the right to apply the proceeds of the sale of the same to the payment of community debts, even against the, wishes of the wife.</p>

<p>1. —Contract—Performance—“As Little Delay as Possible.”</p> <p>A contract for the delivery of lumber stipulated that it should be delivered on the purchaser’s order “with as little delay as possible.” In a suit upon the contract the court charged the jury that the obligor was bound to deliver the lumber “in a reasonable time” after receipt of the order. Held, that the expressions were equivalent and there was no error in the charge.</p> <p>2. —Same—Sale of Lumber—Evidence.</p> <p>In a suit for damages for breach of a contract to buy and pay for lumber of different dimensions and grades, evidence reviewed and held insufficient to support the verdict for plaintiff.</p>

<p>1. —Limitation—Contract to Account.</p> <p>Where an agent appointed to collect the rentals on certain property and pay over the same to a third party, accepts the appointment and agrees in writing to pay over the rentals in accordance with the terms of an assignment, in a suit by the assignee against the agent for rents collected but not paid over, the four years and not the two years statute of limitation would apply.</p> <p>2. —Assignment of Bents—Bepair of Property.</p> <p>An agent appointed to collect the rents from certain property and pay over the same to a third party would have no right, without the consent of the assignee, to apply the rents to repairs on the property.</p>

<p>1.—Injunction—Appeal—Filing Transcript.</p> <p>The filing in a Court of Civil Appeals of a second transcript of a proceeding for an injunction, within fifteen days after the date of the filing with the clerk of the court of the petition with the judge’s order endorsed thereon, satisfies the requirement of the statute that the transcript in such case must be filed in the appellate court not later than fifteen days after the entry of the order of the court, and obviates any objection to the first transcript on the ground that it did not affirmatively appear therefrom that it was filed in due time.</p> <p>3.—Same—Assignments of Error.</p> <p>In an appeal from the order of a judge granting a temporary injunction formal assignments of error are not necessary under the Act of Í909. (Gen. Laws, p. 354.)</p> <p>3. —Same—Practice—Notice.</p> <p>Courts of equity have the power to grant without notice a mandatory injunction, even to the extent in a proper case of restoring to the owner the possession of premises of which he has been deprived by force.</p> <p>4. —Same—Legal Remedy—Statute.</p> <p>The Act of the Thirty-First Legislature amending article 2989, Eev. Stats (Gen. Laws, 1909, p. 304) eliminates any objection to a petition for injunction on the ground that the plaintiff has an adequate remedy at law.</p> <p>5. —Same—Waste—Irreparable Injury—Pleading.</p> <p>The unlawful cutting of trees growing upon land is waste and irreparable injury, and to prevent waste is a recognized use of the writ of injunction. Therefore a petition for injunction which, besides alleging irreparable injury generally, alleges a threatened waste by the unlawful cutting of timber growing upon land, states facts showing such threatened irreparable injury as would authorize the interposition of a court of equity to prevent the same by injunction.</p> <p>G.—Mandatory Injunction—Possession of Realty—Insufficient Pleading.</p> <p>A petition for a mandatory injunction to restore to complainant the possession of land from which it was alleged that he had been ousted by force, considered, and held insufficient to warrant the issuance of such writ, either with or without notice to. the defendant. It is only in extreme cases, such as seldom occur, that such a remedy can be justified before a hearing on the merits.</p> <p>7.—Prohibitory Injunction—Practice.</p> <p>It is seldom, under our equity procedure, that it is necessary to issue even a prohibitory writ of injunction without an opportunity given the defendant for a hearing. A temporary restraining order may _ in all cases be issued compelling immediate cessation of the threatened injury until such time as the defendant can be heard.</p>

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

<p>Error from the County Court of Milam County. Tried below before Hon. John Watson.</p>

<p>Appeal from the County Court of Williamson County. Tried below before Hon. T. J. Lawhon.</p>

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

<p>Appeal from the County Court of Travis County. Tried below before Hon. R. E. White.</p> <p>Hpon affidavit by appellant’s counsel showing excuse for his failure to present a full record a rehearing was granted and the ■record perfected by certiorari, so as to show that jurisdiction of the County Court was obtained by appeal. The judgment was thereafter reversed and remanded in an opinion which has not been designated for publication.</p>

<p>Appeal from the District Court of Coryell County. Tried below before Hon. John D. Robinson.</p>

<p>1. —Brief—Assignment of Error—Irrelevant Proposition.</p> <p>A proposition that the court erred in excluding the testimony of certain witnesses, is not germane to an assignment of error that the court erred in instructing a verdict for the appellee, and therefore can not be considered on appeal.</p> <p>2. —Trespass to Try Title—Partition—Rents—Pleading—Judgment.</p> <p>In a suit of trespass to try title to an undivided half interest in an improved town lot, the plaintiff prayed for judgment for -liis interest in the lot, for partition, rents, damages, etc.; the defendant answered by plea of not guilty; the court instructed the jury to return a verdict for the plaintiff for an undivided half interest in the property, and for one-half its reasonable rental value, and judgment was entered accordingly; on appeal the defendant did not complain of the judgment in so far as it adjudicated to the plaintiff an undivided one-half of the property, but only of the judgment for one-half the rents. Held, the property involved in the' adjudication of the title necessarily included the improvements on the land, and in the absence of an attack on the judgment as to the title, the court properly rendered judgment for the rental value of the entire property, land and improvements; and this, though it was uncontradicted that the improvements were all made by the defendant and gave the property its rental value. The defendant should have plead his equity.</p> <p>3. —Attorney and Client—Testimony not Privileged.</p> <p>The testimony of an attorney to the effect that his client understood an ex parte deposition made by him, would not be subject to the objection that it was a confidential communication.</p>

<p>Damages—Charge—Affirmative Presentation of Defense—Practice.</p> <p>The issue being whether or not the disabilities of which plaintiff complained, in a suit for damages for personal injuries, were caused by a derailment of defendant’s railroad train or from other causes, a charge which required the jury to find from the evidence that plaintiff’s disabilities were directly caused by said derailment before they could return a verdict for the plaintiff, was a sufficient presentation of the defense plead by defendant, and the issue joined, in the absence of a requested instruction to return a verdict for defendant if the plaintiff was not injured by the derailment.</p>

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

<p>Receivers—Certificates—Operating Expenses—Costs—Priority of Payment.</p> <p>A railway in the hands of a receiver, sold under foreclosure of a mortgage securing its bonds after having been operated by the receiver at a loss, failed to bring enough to pay claims for expenses of its operation, of various kinds, and the receiver’s certificates issued under authority of the court for money borrowed to discharge liens of laborers and material men. Held:</p> <p>(1) Various claims, such as for fuel, car rentals, rentals of terminal facilities, loss of cars and freight by, fire, labor, rolling stock, traffic balances due other roads, injuries in person or property, by the receivers’ torts, etc., are held properly adjudged by the court to be expenses of operation and given precedence in payment over the claims of the bondholders.</p> <p>(2) The proceeds of special property of others sold by the receiver and of special funds deposited with him, such as by shippers for cotton concentration, converted by the receiver and used in the operation of the road, gave rise to claims for torts of the receiver similar to demands arising out of negligence in operation and were properly given precedence as operating expenses over the claims of bondholders.</p> <p>(3) Claims of operating expenses have precedence of payment out of the net profits of operation; and if these are wanting or insufficient the court may give them precedence over bondholders as to payment out of the corpus of the property on sale; but this is not a right given by operation of law and is dependent on the order of the court fixing precedence.</p> <p>(4) The priority of payment as between claims for operating expenses and those for receivers’ certificates for money borrowed, is controlled and determined by the orders of the court classifying claims and ordering the issuance of the certificates.</p> <p>(5) An order of foreclosure and sale of a railway in the hands of a receiver classified the claims as follows: A, operating expenses payable from the earnings, and these failing, payable first from the proceeds of sale of the property. Other claims were assigned to classes B., C., D., and E. and given priority of payment out of the proceeds of sale in that order. To class B. certain labor liens, and to class C. certain material men’s liens, to class D. bonded indebtedness, and to class E. unsecured indebtedness, all arising prior to the receivership, were assigned by the same order, and jurisdiction was reserved to adjudicate other demands. Sale under the order was not made for some four years, tlie receiver continuing to operate the road. Meantime receiver’s certificates to the amount of $150,000 were issued and sold under order of the court for money to pay claims originating before the receivership, allowed and assigned to classes B. and C. and the certificates given a first lien on the property with the same classification as the claims they were sold to pay. Such order gave priority of payment over the receiver’s certificate to claims for operating expenses of the receiver, which were by the previous decree, which constituted the final judgment in the case, assigned to class A. The order authorizing the certificates recited a necessity for paying the claims before a sale of the road, contemplating its continued operation and the incurring of future operating expenses having precedence over the certificates, of which the purchasers were bound to take notice.</p> <p>(6) An order to the receiver to make no more improvements and confine operating expenses to 80 percent of the gross earnings was a mere economic direction to the receiver not affecting the validity or classification of claims of persons thereafter furnishing supplies or labor to the receiver as fixed by a previous judgment of foreclosure and classification.</p> <p>(7) Having fixed in its order of foreclosure, which was the final judgment and not set aside, the classification of existing claims and of those to arise from future operation, it was error for the court to refuse afterwards to direct their payment in accordance with such classification.</p> <p>(8) An order classifying claims of certain interveners for debts of operation did not prejudice the rights of the holders of receiver’s certificates which by the terms of the court’s judgment had been postponed in their lien to operating expenses.</p> <p>(9) An order fixing the salaries of the receiver and his attorney and the master in chancery may be modified by subsequent interlocutory orders allowing extra compensation, and persons whose claims were postponed to those of the cost of receivership have no ground of complaint because the salary first fixed was exceeded.</p> <p>(10) The clerk of the court could be paid, as part of the costs of the receivership, for special services performed by him and not required by law as part of his official duties.</p> <p>(11) Persons furnishing supplies for the operation of the road are not estopped from claiming precedence of payment over receiver’s certificates by their knowledge of and failure to object to their issuance.</p>

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

<p>Receiver—Intervention—lien—Judgment — Operating Expenses — Classification of Claims.</p> <p>A railway having been placed in the hands of a receiver and ordered sold under foreclosure of the mortgage of bondholders, the. decree classified the claims entitled to payment from the proceeds in order of priority as follows: A. operating expenses and costs; B. and C. claims for labor and for supplies furnished the company prior to the receivership and certificates for money borrowed to pay such claims. An intervener on a claim for engines and cars sold the company obtained judgment with foreclosure of his lien on the property sold. The operation by the receiver continuing, a subsequent order found the property necessary to the operation of the road and directed the payment out of the earnings, making it a claim under class A. as operating expenses, and it was partly paid out of the earnings. The property was then sold under the bondholder’s foreclosure free from the intervener’s lien. In a controversy over the right to priority of payment out of the proceeds between the intervener and holders of receiver’s certificates (class B. and C.) it is held that the court should have directed the payment of the balance of intervener’s claim out of the proceeds of the sale of the road, as a part of the expenses of operation having priority over the receiver’s certificates.</p>

<p>1.—Receiver—Operating Expenses.</p> <p>Claims of other railways against a receiver operating a railroad for rentals of and damages to their cars in his hands were properly allowed as operating expenses and given such priority of payment out of the receipts or proceeds of sale of the corpus of the property as by the judgment of foreclosure had been assigned to claims of that class.</p> <p>8.—Same—Findings of Master.</p> <p>Claims against a receiver were filed by interveners in the suit and referred to a master in chancery for adjudication and by him reported back, with the amounts, as creditors of the receiver. In the absence of other findings on the subject, this was to be taken as an adjudication by the master of the validity of such claims.</p> <p>3.—Same—Contesting Master’s Findings.</p> <p>Claims of interveners against the receiver having been referred to a master in chancery and lie having included them in his report to the court of obligations of the receiver, other parties, if entitled to contest the allowance of such claims, could do so only on exception to the master’s findings and notice and opportunity given claimants to be heard. A mere objection to the priority of payment given them did not raise the question of their validity as to amount. And an order of the court reducing the amount allowed, without contest made or notice to claimants, was erroneous.</p>

<p>Railway—Receiver-—Liens of Vendors, Laborers, Material Men, etc.—Foreclosure—Priority of Payment.</p> <p>A railway having been sold under foreclosure of the bondholders’ mortgage, question arose as to priority of payment (between holders (1) of a claim for price of land sold the company for right of way secured by vendor’s lien; (2) of receivers’ certificates for money borrowed to pay off wages due laborers by the company and secured by laborers’ lien; (3) of like certificates to pay off lions for supplies and materials furnished the company) out of so much of the price realized on the foreclosure sale as was proportionate to the part of the road to which the vendor’s lien attached (25% percent). Held, that by the order authorizing the issuance of the certificates, this took priority such as was given to the debts discharged by their proceeds; that the laborers’ liens were superior to the vendor’s liens and were to be first paid; that the vendor’s lien was next and took precedence of so much of the certificates as went to pay material men’s claims; that as to a surplus derived from the sale of the certificates which the receiver used for operating expenses it was to be assigned to the rank of the laborers’ or material men’s liens respectively, in proportion to the amount of each which was actually paid off; that the attorneys’ fee provided by contract for the holder of the vendor’s lien took the same lien as his debt.</p>

<p>1. —Receiver—Mortgage Foreclosure—Compensation of Trustee.</p> <p>A deed of trust securing railway bonds provided for payment by the mortgagee of reasonable compensation for the trustee’s services and expenses and fees to his attorneys in case of suit for foreclosure. An order of the court fixing an allowance for such compensation and fees is held to be made in the enforcement of such contract right, and not on any equitable ground which would give the sum allowed precedence of payment as costs of suit.</p> <p>2. —Same—Priority of Claims.</p> <p>A judgment of foreclosure of a deed of trust securing railway bonds classed the claims to be satisfied thereby as follows: A, operating expenses; B, labor liens; C, liens for materials furnished; D, bonded indebtedness; E, unsecured claims. Held, that an allowance of compensation to the trustee and his attorneys, made by the court in pursuance of the right thereto given bv the deed of trust, did not take precedence, as operating expenses or costs, over receiver’s certificates issued for money to pay claims assigned to classes B. and C. and given the same priority as the claims discharged. The right to such allowance rested on the mortgage contract and was postponed to claims having precedence of those secured thereby.</p>

<p>1. —Impeachment of Witness—Contradictory Statements.</p> <p>In order to impeach a witness by proof of previous statements contradicting his testimony, they must be called to his attention, so as to afford him opportunity for explanation, and other proof of such previous statements is not receivable where he admits having made them.</p> <p>2. —Discovered Peril—Charge.</p> <p>A charge of negligence after discovery of another’s peril criticised as assuming the fact that the person charged with negligence realized the other’s peril.</p> <p>3. —Same—Charge.</p> <p>Where no charge limiting certain evidence to purposes of impeachment was necessary, an instruction that it could be considered for that purpose was on the weight of evidence, and was erroneous.</p> <p>ON MOTION FOR REHEARING.</p> <p>4. —Same.</p> <p>Where evidence of a previous statement by a witness was admitted against him because he was a party, a charge that the jury could consider the same as affecting his credibility was erroneous as to him, being an invasion of the province of the jury.</p> <p>5. —Same.</p> <p>Where the testimony given by a defendant on a coroner’s inquest was more favorable to defendants than that given on the trial, its admission could not be considered prejudicial to his codefendant unless limited by a charge restricting its effect against the latter to purposes of impeachment, and no such charge was called for in his interest.</p> <p>6. —Evidence—Impeachment.</p> <p>Where a witness was questioned in detail on cross examination as to all the statements made in his former testimony, and admitted them all, with explanations that in some he was mistaken, the written testimony is not then admissible. His previous statements can be proved for impeachment only when he denied making them, or when, he admitting generally that the testimony was given, the writing was necessary to show what he so admitted having sworn.</p> <p>7. —Charge—Weight of Evidence.</p> <p>Trial courts have no right to refer in their charges to the testimony of any particular witness or to testimony to any fact or group of facts unless this becomes essential to the protection of some right of one or more of the parties.</p> <p>8. —Same.</p> <p>Where a judgment is supported by only a slender margin of evidence slight deviation from the rule prohibiting charges on the weight of evidence may be cause for reversal.</p>

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

<p>1. —Husband and Wife—Deed by Husband to Wife—Effect.</p> <p>A deed by a husband to a wife of community property vests the title thereto in her separate estate, and this, although there be no recitals in the conveyance evidencing such intention on the part of the husband.</p> <p>2. —Same—Conveyance by Third Party.</p> <p>When a third party conveys to the wife by a deed which does not in terms convey to her separate use, nor show that the consideration was paid out of her separate estate, the title so conveyed vests prima facie in the community. Such prima facie effect may be avoided by proof that the consideration was paid out of the wife’s separate estate, or that it was the intention of the grantor that the property should belong to the separate estate of the wife.</p> <p>3. —Same—Conveyance to Wife in Trust.</p> <p>A husband and wife conveyed a town lot, the husband’s separate property, to a third party with the understanding that said party would convey the said property to the wife so as apparently to vest the title in her separate estate; this was done to prevent the husband’s creditors from levying on the property, and not for the purpose of making the property the wife’s "separate property in fact; the deed from the third party to the wife by mistake failed to use such apt words as would make the property the wife’s separate property. The husband and wife separated, and the wife sued to divest the title to the lot out of the husband and out of the community estate and vest the same in her separate estate. Held, the intentions of the parties should control; and because it was never the intention of the husband or the wife that by said transaction the property was to become in fact her separate property, she was not entitled to recover.</p> <p>4. —Fraudulent Conveyance—Exempt Property.</p> <p>A conveyance of property which is in fact exempt as homestead is not a conveyance in fraud of creditors, although the conveyance was made under the mistaken belief that creditors might seize it. Property so conveyed might be recovered by the grantor.</p>

Tried below before Hon. Norman G. Kittrell. Q. “You got that somewhere else?

<p>Appeal from the County Court of Montague County. Tried below before Hon. A. W. Ritchie.</p>

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

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

<p>1. —Gambling Transaction — Notice to Corporation — Insufficient Evidence.</p> <p>That some of the officers of an incorporated oil mill company, who were also officers and directors in an incorporated bank, knew of or conducted transactions in futures for and in behalf of the mill, would not make the bank a participant in said transactions or responsible for its officers when acting alone for the oil mill company, it not appearing that the respective boards of directors of the bank and the mill knew of, sanctioned or took any action whatever concerning said transactions. This rule applied in a suit by a bank upon promissory notes executed by a stockholder in an oil mill company, the defense being that the notes were given to carry on dealings in futures and were therefore invalid.</p> <p>2. —Estates—Authentication of Claim.</p> <p>The cashier of a bank having conducted a transaction between the bank and a decedent and therefore cognizant of all the facts, is the proper party to make affidavit to a claim against the decedent’s estate, growing out of said transaction. A corporation can only make affidavit by an officer and the affidavit of the officer in the case will be considered as the affidavit of the owner of the claim.</p> <p>3.—Same—Affidavit.</p> <p>An affidavit to a claim against an estate “that there are no offsets, credits or payments due on the .same,” and that a certain amount is due thereon, is equivalent to saying that all legal offsets, payments and credits known to affiant have been allowed.</p>

<p>Appeal from the District Court of Falls County. Tried below before Hon. Richard I. Munroe.</p> <p>Associate Justice Rice being disqualified, A. O. Sandbo, Esq., was appointed Special Associate Justice in this case.</p>

<p>Appeal from the County Court of Williamson County. Tried below before Hon. T. J. Lawhon.</p>

<p>1. —Damages—Overflow—Johnson Grass.</p> <p>Where the injury by wrongful flooding of plaintiff’s land consisted in impairment of the productiveness of a perennial growth thereon, such as alfalfa, the measure of damages was the difference in the value of the land before and after the injury was inflicted; and so, also, as to its like impairment by the washing upon it and growth thereon of the seeds of Johnson grass.</p> <p>2. —Same.</p> <p>The allowance of the value of the crop destroyed in a given year and of the depreciation of the value of the land by injury to its future productiveness, was proper, and not a double recovery.</p> <p>3. —Same—Johnson Grass—Contributory Negligence—Charge.</p> <p>Plaintiff’s right to recover for injury to his land and by seeds of Johnson grass maturing on the right of way of defendant railway being established by verdict, the fact that the charge submitting the defense that plaintiff himself permitted such seed to mature on his land referred only to the portion' so injured by defendant’s acts was not cause for reversal; the evidence disproving such default of plaintiff was the same and required the same verdict as to all parts of his land; and the' error, if any, was one of mere omission, unavailable in the absence of a requested instruction.</p> <p>4. —Trial—Beading Decisions to Jury.</p> <p>Whether counsel should be permitted, in argument, to read to the jury from decided cases, is a matter within the discretion of the trial court, and not gz-ound for reversal unless the discretion is shown to have been abused to appellant’s prejudice.</p>

<p>1. —Appeal—Immaterial Assignments—Practice.</p> <p>Where on appeal no complaint is made of the amount of the verdict and judgment, assignments of error based upon the admission and exclusion of evidence as to the amount of damages will not be considered because immaterial.</p> <p>2. —Condemnation Proceedings—Appeal—Interest on Award.</p> <p>A city by proper and regular proceeding condemned a strip of land for street purposes; the owners of the land appealed from the award; the city made the deposit and executed the bond required by law and took possession of tlile land in controversy; upon trial of the appeal in the County Court a verdict was rendered against the city for a larger amount than the commissioners awarded. Held, that the owners were entitled to interest at the legal rate only on the difference between the amount of the award and the amount of the verdict from the date the city took possession of the land.</p>

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

<p>1. —Demurrer to Evidence—Motion to Instruct Verdict—Practice.</p> <p>A motion to instruct a verdict for defendant upon, the close of plaintiff’s evidence is not of the same legal effect as a demurrer to the evidence. A demurrer to the evidence withdraws the case from the jury and submits it to the court; a motion by defendant to instruct a verdict in his favor simply calls for the judgment of the court upon the strength of plaintiff’s case, with the privilege, in case the decision is against him, of proceeding to develop his defense.</p> <p>2. —Practice—Refusal of Charge.</p> <p>It is not error to refuse a special charge when the issue presented thereby is covered by the main charge, even though the special charge be couched in better, simpler or more accurate language, provided the inaccuracy of expression in the main charge is not sufficient to mislead the jury.</p> <p>3. —Breach of Contract—Measure of Damages.</p> <p>For the purpose of carrying out a contract to reclaim" stranded and sunken logs, plaintiff at his own cost built a boat especially adapted to such work; in a suit by plaintiff for damages for a breach of the contract by defendant in refusing to permit ■ him to reclaim all the logs, the court charged the jury upon the measure of plaintiff’s damage that in arriving at the amount of profit plaintiff may have made, all the expense of building the-boat should be taken into account along with other expenses of carrying out the contract, to be deducted from the amount to be realized from the work, field, error. The expense of building the boat was not a part of the expense of carrying out the contract and earning the price, which was saved to plaintiff by stopping the work, and which must be deducted from the price in estimating the profits. The reasonable value of plaintiff’s personal services rendered in carrying out the contract would be a proper item to be deducted from the profits.</p> <p>4. —Erroneous Charge—Uncertain Effect—Practice.</p> <p>When it can not be certainly determined that the verdict of a jury was not influenced by an erroneous charge, the verdict should be set aside.</p> <p>5. —Contract—Employment—Time—Construction.</p> <p>Where a contract of employment does not stipulate any particular length of time or term of employment, either party would have a right to terminate it at any time.</p>

<p>1.—Railroad—What Constitutes—Statute Construed—Cases Followed and Overruled.</p> <p>A tram-road upon which steam locomotives and log cars and ordinary flat ears were operated by a lumber company for the exclusive purpose of hauling logs to its mills, is a “railroad” within the meaning of article 3017, Rev. Stats., concerning the liability of persons or corporations operating a “railroad” for injuries to their employees resulting in death. Receivers of Kirby Lumber Co. v. Ownes, 56 Texas Civ. App., 370, followed; Ott v. Johnson, 101 S. W., 534, overruled.</p> <p>2. —Jury—Selection—“Jury Wheel” Law—Cases Followed.</p> <p>The cases of Smith v. State, 54 Texas Crim. App., 298; Lee v. State, 54 Texas Crim. App., 382, and Northern Texas Traction Co. v. Danforth, 53 Texas Civ. App., 419, followed in holding that the Act of 1907 (Gen. Laws, 1907, p. 269), concerning the selection of juries in certain counties, is not in violation of sec. 56, art. Ill of the State Constitution forbidding the passage of local or special laws except in certain cases.</p> <p>3. —Master and Servant—Railroad Employee—Assumed Risk—-“Defect and Danger”—Statute.</p> <p>The terms “defect and danger” as used in the Act of 1905 (Gen. Laws, 1905, p. 386), abolishing the defense of assumed risk in suits by railroad employees for personal injuries, are broad enough to include and do include any defective or improper and dangerous manner in which a railroad train may be made up and operated, resulting in injury to an employee.</p> <p>4. —Statute—Construction—Emergency Clause.</p> <p>The construction of a statute should not always be controlled by the terms of an emergency clause attached thereto. The purpose of an emergency clause and the lack of any necessity that it should be clear and specific in its terms precludes the idea that there was any intention that it should have the effect of limiting the terms employed in the body of the Act.</p> <p>5. —Negligence—Contributory Negligence—Question of Fact.</p> <p>Except when the evidence is undisputed, the issues of negligence and contributory negligence are always issues of fact to be determined by the jury. In a suit by a railroad employee for personal injuries caused by the derailment of a railroad logging train, while being operated in the usual and customary manner well known to the plaintiff, evidence considered and held to require the submission of the issues of contributory negligence and assumed risk to the jury and sufficient to support their finding against the defendant.</p> <p>6. —Contributory Negligence—Test.</p> <p>It does not necessarily follow that an employee will be guilty of contributory negligence by continuing in employment where' he is exposed to dangers from the negligence of the employer in the matter of defects in the appliances and machinery furnished the employee even though the employee has knowledge thereof. It is always a question whether a person of ordinary care would have so continued.</p>

<p>Appeal from the County Court of Upshur County. Tried below before Hon. Albert Maberry.</p>

<p>1. —Boundaries—Controlling Calls.</p> <p>The principles giving controlling effect to certain calls in ambiguous description of land discussed.</p> <p>2. —Same—Beginning Point—Case Stated.</p> <p>The beginning comer is of no greater dignity than others in the description of land. Where a deed called for marked bearing trees at the beginning corner on the East line of the original survey, and for the Southeast corner, and for a given distance between, the beginning corner should be placed at the distance North from the Southeast comer so called for, unless a point, further North on the East line could be identified by the bearing trees or other evidence, as the place marked and designated for beginning.</p> <p>3. —Newly Discovered Evidence.</p> <p>Facts considered and held not to show error in refusal of a motion for new trial on the ground of newly discovered evidence in regard to a disputed boundary line, the facts being ascertainable and the necessity for inquiry into them obvious before trial.</p>

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

<p>1. —Master and Servant—Railway—Operating Car.</p> <p>Section hands distributing ties along the track by loading them upon a push car, shoving same along the track and throwing _ off ties therefrom at points where they were needed, were engaged in operating a car within the meaning of the Act of June 18, 1897. (Laws Twenty-Fifth Leg., Called Session, p. 14). The company was liable for injury to one of such employees by the negligence of another in causing a tie to be thrown upon him in such unloading. It was not necessary that the car be moving while the tie was being thrown off to render the injury one received in its operation.</p> <p>2. —Same—Cases Distinguished.</p> <p>Lakey v. Texas & P. Ry. Co., 33 Texas Civ. App., 44; Gulf, C. & S. F. Ry. Co. v. Howard, 97 Texas, 518; Gulf, C. & S. F. Ry. Co. v. Johnson, 47 Texas Civ. App., 74; Texarkana & F. L. S. Ry. Co. v. Anderson, 102 Texas 402, distinguished; and Seery v. Gulf, C. & S. F. Ry. Co., 34 Texas Civ. App., 89; Texas & P. Ry. Co. v. Webb, 31 Texas Civ. App., 498, and other cases followed.</p> <p>3.—Charge—Negligence in Employing.</p> <p>Requested instruction on effect of knowledge by injured employee of the negligent character of the coservant by whose fault he was injured held properly refused because embraced in the charge given.</p>

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

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

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

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

<p>Appeal from the County Court of Bosque County. Tried below before Hon. P. S. Hale.</p>

<p>1.—Master and Servant—Place to Work—Duty and Liability of Master— Negligence—Burden of Proof.</p> <p>In a suit by a railroad machinist against his employer, a railroad company, for damages for personal injuries caused by his stepping upon some rolling object on the floor of the machine shop and being thereby thrown into an ash pit and burned, the following principles must apply and control: First, that it was the duty of the employer to exercise ordinary care to furnish the employee a reasonably safe place in which to work; second, that a defect existed in the place furnished; third, that the defect was of such character that ordinary care on the part of the employer would have discovered and remedied it; and fourth, that the negligence of the employer proximately caused the injury complained of. A failure to prove any one of said facts would he fatal to a right to recover. Evidence considered and held insufficient to show negligence on the part of the employer.</p> <p>3.—Negligence—Bes Ipsa Loquitur.</p> <p>. The following rule of res ipso loquitur approved: “There must be reasonable evidence of negligence; hut where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it .affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.”</p>

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

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

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

<p>Appeal from the County Court of Sherman County. Tried below before Hon. O. J. Ingham.</p>

<p>1. —Evidence—Opinion—Hypothetical Question.</p> <p>Witnesses should not be permitted to give their opinions in answer to hypothetical questions which embrace facts not supported by the evidence.</p> <p>2. —Evidence—Opinion.</p> <p>A witness who testified that he could not, after four years, remember the exact words of his conversation with plaintiff, may still be permitted to state that he did not make a certain statement or give a certain promise at that time.</p> <p>3. —Damages—Charge—Transportation of Cattle.</p> <p>Damages being claimed for injury to cattle both by failure to furnish cars at the time agreed and by delay and bad handling in their transportation, an instruction which made the measure of damages in case of recovery the difference between the value at destination when delivered and the same at the time they should have been delivered according to contract, was erroneous in permitting a recovery of damages under both issues upon proof sustaining either.</p> <p>4. —Damages—Pleading—Charge.</p> <p>Where there is proof of damages in excess of those alleged, recovery should be limited by the instructions to the amount pleaded.</p> <p>5. —Transportation of Live Stock—Loss of Market.</p> <p>Where delay in transportation of live stock to market was claimed to have caused loss by decline in the market, defendant was entitled, upon proof making such instructions appropriate, to a requested charge disallowing such decline from the market price of a previous day if the cattle, transported in proper time, would not have reached destination in time to be put on the market on that day.</p>

<p>Contract—Sale—Mistake.</p> <p>A merchant ordered from manufacturers 11,000 cards of needles with his advertisement printed on the cards. Before filling it, the latter, sending him a copy of his order, requested him to check it over carefully and make any changes or corrections desired, to which he replied: “I have checked this all over carefully and find it correct in every particular.” Held that the purchaser was bound to accept and pay for the quantity ordered, though he intended and understood the order to be for 11,000 needles and not for 11,000 cards of needles.</p>

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

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

<p>1. —Appeal—Jurisdiction of Trial Court—Practice.</p> <p>On appeal the jurisdiction of the trial court over the case must be determined by the record. Evidence aliunde can not be received in the Court of Civil Appeals under art. 998, Eev. Stats., except to determine matters of fact affecting its own jurisdiction.</p> <p>2. —Same—Case Stated.</p> <p>An action for injury to live stock in transportation was commenced in Justice Court by written petition itemizing damages aggregating more than $200, as shown by the record. On appeal from a judgment rendered on appeal in the County Court, the Court of Civil Appeals refused certiorari to bring up the original petition on allegations that the items originally showed a claim for only $200, which was amended in the County Court by interlineations made by consent, increasing the amount of certain items claimed, and reversed and dismissed the case, holding themselves bound by the record which showed a claim beyond the jurisdiction of the Justice Court. In the opinion of Mr. Justice Hodges such amendments in the County Court would have the same effect if established.</p> <p>3. —Amount in Controversy—Pleading.</p> <p>A pleading in Justice Court alleging items of damage aggregating more than $200 showed a case beyond the jurisdiction though the petition closed with a general allegation of damages in the sum of $200.-</p> <p>4. —Same—Justice Court—Docket Entries.</p> <p>A docket entry in Justice Court can only be made from the claim or petition of plaintiff. Where he filed a written petition showing damages exceeding $200, the case was beyond the jurisdiction, though entered on the docket as a claim for $200.</p> <p>5. —Jurisdiction—Presumption.</p> <p>Presumptions in support of the jurisdiction can not be made in the face of a record which shows the facts to be otherwise.</p>

<p>1. —Damage to Bice Crop—Proximate Cause—Charge Approved.</p> <p>In a suit for damage to a crop of rice caused by rendering the water used for irrigating unfit for that purpose, charge of the court upon proximate cause, considered and approved.</p> <p>2. —Same—Permanent Injury—Limitation.</p> <p>Where the evidencie showed that injury to the tillable lands of riparian owners upon a stream would be the natural and permanent result of the construction of a canal, and that such result must have been anticipated as reasonably certain, the owners’ cause of action for damage to their lands and crops arose upon the completion of the canal, and limitation would run from that time; and the mere fact that during seasons of unusual natural conditions no injury would result, would not alter the case.</p> <p>3. —Same.</p> <p>When the injury to land is the natural and necessary result of the construction of a canal, then the injury is permanent and continuous as distinguished from a recurrent injury of a transient character dependent upon accidents and contingencies, and the statute of limitation would run from the completion of the canal and not from the date of any special damage caused by the construction.</p> <p>4. —Corporation—Foreclosure Sale—Purchaser—Floating Debts.</p> <p>Where a mortgage of the assets of a corporation is foreclosed, and the purchasers, for the purpose of managing the property and taking to themselves the necessary corporate franchises, organize a new corporation, this, not being a continuation of the old organization, is not liable for its debts or bound to perform its obligations unless such liability has been assumed by contract or has been imposed by an operative statute.</p> <p>5. —Navigable Waters—Federal Jurisdiction—Canals.</p> <p>An artificial navigable canal connecting navigable streams with tide water, is a highway of commerce, and, therefore, under the jurisdiction of the Federal government. A corporate ownl?r of such canal would not have the right to obstruct or otherwise destroy the same to prevent the pollution of the navigable stream.</p>

<p>1. —Master and Servant—Defective Machinery—Duty of Servant.</p> <p>An employee is never required to exercise ordinary care to discover defects in machinery or implements furnished him by his employer, or to discover unknown dangers arising from their use in the manner directed by his superior. Hence a charge imposing this duty on an employee in a suit by him for damages for personal injuries received in “throwing” a belt in obedience to orders, with the danger of which he was not familiar, was reversible error.</p> <p>2. —Same—Assumed Risk—Question of Fact.</p> <p>When an employee acts suddenly on an imperative order enjoining instant obedience, and the danger is not certain, the issues of negligence and assumed risk are for the jury, even though the employee may be experienced.</p>

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

<p>Error from the District Court of Hale County. Tried below bo- ■’ fore Hon. R. C. Joiner, Special Judge.</p>

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

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

<p>Appeal from the District Court of Crosby County. Tried below before Hon. Jo. A. P. Dickson.</p>

<p>1.—Negligence—Death—Causal Connection—Insufficient Evidence.</p> <p>In a suit by a surviving widow against a railroad company for the death of her husband, it was shown by the evidence that deceased alighted at one of defendant’s stations on a dark night for the purpose of going to the house of a relative about 150 yards distant; he was afterwards found in an unconscions condition lying at the bottom of a gully or gulch and near the railroad bridge that crossed tire same in the direction of the relative’s house; he died next morning without explaining how he came to fall in the gully, and there was no evidence explaining the occurrence. Held, the facts that there were nails extending from some of the planks of the bridge, and that the bottom of one of deceased’s shoes was torn, together with other facts above stated, were not sufficient to warrant the jury in inferring that the deceased was walking over the bridge and struck his shoe against a nail projecting therefrom and was caused to fall from the bridge, and the court properly instructed a verdict for defendant.</p> <p>3.—Same.</p> <p>The causal connection between a negligent act or omission and an injury-must be proved; it can not be presumed.</p>

<p>1. —Notice—Possession by Tenant—Unrecorded Deed.</p> <p>A debtor conveyed a town lot to a third party who neglected to put his deed on record; subsequently a judgment was obtained against the debtor and the same was duly abstracted and recorded; at the time of the conveyance to the third party the debtor had a tenant in actual possession of the lot who thereupon attorned to the third party or his vendee and thereafter paid him the monthly rentals as they accrued; this was the situation at the time the judgment was obtained and recorded and the land sold under execution issued on said judgment. Held, the judgment creditor and the purchaser at execution sale were charged with notice of the unrecorded deed by reason of the possession of the tenant holding under the third party.</p> <p>2. —Same—Possession is Equivalent to Registration.</p> <p>It is incumbent on one about to buy land to inform himself of the rights of the occupant or of the landlord of the occupant at that very time; he must not rest on the assumption that parties are occupying under the same right as formerly.</p> <p>3. —Judgment lien—Homestead Exempt.</p> <p>A homestead is not subject to a judgment lien.</p>

<p>1. —Telegraph Company—Delay in Delivering Message—Infections Disease— Mental Anguish.</p> <p>In view of the infectious and fatal character of yellow fever in this State in 1903, it can not be said, as matter of law, that a person of ordinary firmness, intelligence and courage would not have suffered mental anguish by having to remain in a community in which the disease had appeared.</p> <p>2. —Same.</p> <p>Pleading and evidence considered, and held to show a cause of action against .a telegraph company for negligent delay in delivering a telegram warning plaintiff of the existence of yellow fever in a certain city and advising him to abandon an intended visit there, whereby plaintiff was caused to visit said city and forced to remain therein nineteen hours, thereby suffering mental anguish from fear of contracting the disease and from fear of being quarantined.</p>

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

<p>1.—Carriers—Consignor and Consignee.</p> <p>In a suit for damages to goods shipped by rail, evidence that plaintiff shipped them to a third party, without other proof as to ownership, did not entitle him to maintain the action. The testimony constituted prima facie evidence of title in the consignee.</p> <p>2.—Connecting lines.</p> <p>To recover damages against the terminal carrier the proof must show that the goods came into his possession.</p>

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

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

<p>1. —Special Issues—Practice.</p> <p>W]hen a ease is submitted to a jury on special issues, the generality of one of the questions constitutes no objection to the answer when more specific instruction was not asked.</p> <p>2. —Same—Answers not Inconsistent.</p> <p>To one question, whether or not the debtor transferred the property in controversy with intent to hinder and delay his creditors, the jury answered, “No;” to another question, whether or not the debtor used the cash, or substantially all of it, received from the sale of said property in the payment of preexisting debts, the jury answered in the affirmative. Held, the answers were not inconsistent even when taken to mean that he did not so apply all of the cash. ,</p> <p>3. —Statute of Frauds—Bight to Prefer Creditors.</p> <p>An insolvent debtor has the legal right to pay certain of his creditors in full and leave others unpaid, and to sell property with such intent and purpose. But when he sells his property with the intent of applying only a part of the proceeds to the payment of certain debts and to us|e the balance for the purpose of extorting an unjust compromise from other creditors, the sale is in contravention of the statute of frauds. Evidence considered and held not to warrant a finding that a sale of property by an insolvent debtor was not made with intent on his part to hinder and delay his creditors.</p> <p>4. —Same—Insolvent Debtor—Innocent Purchaser.</p> <p>Evidence considered and held sufficient to support a finding that a fraudulent intent on the part of an insolvent debtor in the sale of his property was not known to or participated in by the purchaser, and the sale was therefore valid as against existing creditors.</p> <p>5. —Charge—Failure to Submit Issue—Practice.</p> <p>A failure by the court to submit an issue raised by the evidence is not reversible error in the absence of a request to submit the same.</p> <p>6. —Same—Fraudulent Conveyance.</p> <p>The issue being whether or not a sale of land by an insolvent debtor was fraudulent, the court submitted the following issue to the jury: “At the time of the transfer did D. (the purchaser) have knowledge of facts and circumstances sufficient .to cause an honest man of ordinary prudence to make enquiry, etc.?” Held, the use of the word “honest” in that connection was not error.</p> <p>7. —Injunction—Refusal to Dissolve.</p> <p>There can be no merit in an assignment of error that the trial court erred in refusing to sustain a motion to dissolve an injunction, when on final hearing the injunction is properly perpetuated.</p> <p>8. —Same—Legal Remedy—Rule.</p> <p>The rule that equity will not interpose when the party applying for an injunction has an adequate remedy at law, is not one which absolutely denies jurisdiction to a court of equity. It is rather ia rule of convenience and propriety which the defendant or the court may avail itself of and which the defendant may waive. Therefore when this objection to an injunction is presented for the first time in an amended answer on the eve of trial, it was not error for the court to overrule the same.</p> <p>9. —Attorney and Client—notice to Attorney.</p> <p>When the employment of an attorney is simply to prepare the deed and examine the title to a tract of land for a prospective purchaser, knowledge that the attorney may have acquired prior to and independently of that employment as to the fraudulent intent of the vendor of the land, can not be imputed to the client.</p> <p>10. —Jury Trial—Province of Jury.</p> <p>Where the evidence is conflicting, a jury has the right to reject the testimony of one of the parties and accept exclusively the testimony of another.</p>

<p>Appeal from County Court of El Paso County. Tried below before Hon. Albert S. Eylar.</p>

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

<p>1. —Public Road—Recognition and Use—Prima Facie Case.</p> <p>Evidence- of use of a road by the public for many years, its survey by a jury of view, and the subsequent appointment of overseers and. improvement as a. highway by the authorities, was sufficient, as against one enclosing it, but making no proof of title in himself, to make a prima facie case that it was a public road, though not shown to have been established by the methods recognized by law.</p> <p>2. —Public Road—Change.</p> <p>A public road can only be changed in the manner provided by law and by the Commissioners’ Court. (Rev. Stats., arts. 4672, 4696). Proof that a part of it was enclosed by one claiming title and that thereafter the line as changed by the enclosure was worked and bridged under the direction of the Commissioner of the precinct, did not establish such lawful change.</p> <p>3. —Public Road—Class.</p> <p>The evidence being held sufficient to show prima facie the establishment of a first class road, the action of the Commissioners’ Court in ordering the removal of obstructions to same for the width of forty feet, the minimum legal width for a road of such class, was proper.</p>

<p>1. —-Tenue—Lien—Place of Performance.</p> <p>Transactions concerning a sale of lumber held not to show a lien by the seller on lumber sold which the purchaser refused to take nor a written contract by the purchaser to perform in the county. The purchaser being a resident of another county, his plea of privilege to be there sued should have been sustained.</p> <p>2. —Sale—Passing Title.</p> <p>A contract for sale of specific lumber in the hands of the seller to be shipped to the purchaser and be paid for by him in the future, is held to evidence a completed sale by which the lumber became the property of the purchaser.</p> <p>3. —Sale—Refusal to Receive and Pay—Election of Remedies.</p> <p>The seller of personal property, on the refusal of the buyer to receive same may elect between the remedies open to him; (1) Hold the property as the purchaser’s and sue for the contract price (for which he would have a lien on the property); (2) sell it to another and recover the difference between the contract price and that obtained (by which his lien against the first purchaser would be lost) ; (3) keep the property as his own and recover the difference between the market and the contract price. But the buyer can not elect one alternative as to part of the property and another as the rest, and his sale of a part to a third person was a choice which waived his lien as to all, being an election as to all of the second remedy.</p> <p>4. —Sale to Another.</p> <p>The resale by the seller, of property which the buyer refused to accept was an election of his remedy by suit for the difference between the price promised and that realized on resale, though the second purchaser was to store the property subject to the first purchaser’s demand to deliver on the first sale. It placed delivery to the first buyer out of the seller’s power, and substituted for his own the' liability of another to make delivery. Especially was the seller bound by such election where other property was mingled with that transferred by the resale.</p> <p>5. —Contract—Place of Performance.</p> <p>The owner of lumber in H. county by. contract in writing sold it to a purchaser in D. county, .to whom it was to be shipped for a named price f. o. b. cars, the place of payment not being designated. Held, that it was not a contract to be performed by the buyer in H. county, so as to give venue there in a suit to which he interposed his plea of privilege.</p>

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

<p>1. —Street Improvements—Assessment of Benefits.</p> <p>The special charter of the city of Paris, the ordinances passed thereunder prescribing the method of procedure for paving streets and assessing the benefits of the improvements against owners of lots thereon, and resolutions and proceedings of the city council for such assessment considered and held to show proceedings in accordance with such charter and ordinances.</p> <p>2. —Same—Amendment of Resolution.</p> <p>A resolution providing for the paving of a portion of a street, which complied with all requirements of the charter and ordinances of the city in regard to the method of doing such work and assessing the benefits against lot owners, having been amended by a resolution adding other parts of the street to the portion to be paved this was a sufficient adoption, as to the added part, of the procedure provided by the original resolution.</p> <p>3. —Same—Engineer’s Report.</p> <p>The ordinances requiring an engineer’s report to the council of the cost of improvements and property and owners to be benefited, with estimate of benefits, and the resolution for paving a certain part of a street requiring the making of such report, an amendment to the ordinance added a further portion of the street to the part to be paved under such resolution and a report of the engineer giving the - cost, specifications, ownership, and estimated benefits, as to this added portion was made to the council. The requirement that this was to be ordered and made was complied with as to such portion added by the amendment, the failure to order the report before it was made being a harmless irregularity.</p> <p>4. —Street Paving—Assessment of Benefits—Constitutional Law.</p> <p>A city charter giving authority to pave streets and assess the cost against lots and lot owners as far as the property is benefited by the improvement, giving such owners the right to be heard thereon before the council but making its determination final, is not unconstitutional as a taking of property without due process of law (Const. U. S. Fourteenth Amendment) ; nor because jury trial was denied (Const. of Texas, art. 1, sec. 15), the assessment being a tax which was not required to be imposed by a jury; nor under the requirement that private property shall not be taken for publie use without compensation (Const. of Texas, art. 1, sec. 17) ; nor because such procedure departs from the due course of the law of the land (Const. of Texas, art. 1, see. 19); nor as infringing the requirement that the courts shall be open for redress of injuries (Const. of Texas, art. 1, see. 15) ; nor the requirement that all taxes shall be equal and uniform (Const. of Texas, art. 8, sec. 1) this having no reference to assessment of benefits.</p>

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

<p>1. —Appeal—Jurisdiction—Amount in Controversy.</p> <p>A Court of Civil Appeals has no jurisdiction of an appeal from a County Court in a case originating in the Justice Court wherein the amount sued for is $100.</p> <p>2. —Same.</p> <p>Where the jurisdiction of the Court of Civil Appeals depends upon the amount in controversy it is not permissible in determining the amount in controversy to add together the amount sued for by the plaintiff and the amount sued for by the defendant by plea in reconvention. Either the plaintiff’s demand or that of the defendant must in and of itself reach the jurisdictional sum.</p>

<p>' Appeal from the County Court of Eastland County. Tried below before Hon. E. A. Hill.</p>

<p>1.—Contract—Acquiescence in Statement—Evidence.</p> <p>Acquiescence, to have the effect of an admission of the party to be affected thereby or to constitute a concurrence in what is being said or done by another, must exhibit some act of the mind and amount to voluntary demeanor or conduct of the party sought to be bound thereby; and it must plainly appear that such conduct was fully known or the language fully understood by such party before any inference of assent can be drawn from his silence.</p> <p>2.—Venue—Contract to Deliver Goods—Insufficient Evidence.</p> <p>The mere fact that the manager of a private corporation was present in the room when and where the attorney for the purchaser of goods from the corporation dictated to the bookkeeper of the corporation an agreement, endorsed on the invoice of the goods, that the goods were to be delivered by the corporation at the residence of the purchaser in another county, was not sufficient to support a finding that the manager heard and assented to the agreement as to the delivery of the goods, and hence insufficient to fix the venue in the county of the purchaser’s residence in a suit for damages for failure to deliver the goods as per contract.</p> <p>ON REHEARING.</p> <p>3.—Plea of Privilege—Practice.</p> <p>Under the Act of the Thirtieth Legislature (Laws, 1907, p. 249) when a plea of privilege to be sued in a different county is sustained, the suit should not be dismissed but an order should be entered transferring the suit to the county and court to which the venue was changed.</p>

<p>1. —Mandamus—Parties.</p> <p>In a mandamus proceeding to compel the clerk of a court to issue an execution on a judgment, the judgment debtor may properly be permitted to intervene and contest the motion.</p> <p>2. —Bankruptcy—Judgment Debtor.</p> <p>A judgment debtor is relieved from payment of the judgment when the same has been duly scheduled and the judgment creditor notified of the bankruptcy proceeding. Execution should not thereafter issue on such judgment.</p> <p>3. —Same—Judgment Creditor.</p> <p>In tlio absence of evidence that a personal judgment reverted to a bankrupt at the close of bankruptcy proceedings against him, it will be presumed that the title thereto had passed out of him, and he would have no right to demand that execution issue thereon or to collect the same.</p> <p>4. —Jury Trial—Refusal not Error, when.</p> <p>When the evidence is such that the trial court should have instructed a verdict for the defendant had the case been tried with a jury, the refusal of the court to allow the plaintiff to have a jury can not be reversible error.</p> <p>5. —Day in Court.</p> <p>It would seem that when there were three other final judgments involving the same questions and between the same parties, besides three other suits involving the same questions between the same parties pending on appeal, in all of which the appellant was cast in the actions, it could not be said that the appellant had. not had his “day in court.”</p>

<p>Condemnation—Amendment of Judgment—Jurisdiction.</p> <p>A County Court would have the power to amend in August a judgment rendered in June before upon the award of commissioners in condemnation proceedings so as to embrace a certain tract of land which, by mistake of all the parties, was omitted from the judgment, and such amended judgment would be a bar to a suit by the original owner for the land omitted from the original judgment.</p>

<p>Error from the County Court of Freestone County. Tried below before Hon. John Terry.</p>

<p>1. —Venue—Tram Road—Lumber Company.</p> <p>A tram road operated by receivers of a lumber company in the conduct of the business of the company, comes within the purview of the Act of 1901 (Gen. Laws, 1901, chap. 27) concerning the venue of suits against receivers of railroads for personal injuries, and such receivers may be sued either in the county in which the injury occurred or in the county of plaintiff’s residence.</p> <p>2. —Personal Injuries—Charge Approved—No Double Recovery—Cases Distinguished.</p> <p>In a suit for damages for personal injuries the court charged the jury as follows: “If you find a verdict for plaintiff you will assess his damages at such a sum of money as, if paid in hand at this time, will fairly and justly compensate him for the injuries alleged in his petition which you find from the evidence he sustained, if any; and in doing so you will take into account the mental and physical pain, if any, suffered by him up to this time and that will be suffered by him in the future as a result of said injuries, if any; the earning capacity lost by him on account thereof, if any; and the impairment of his ability to earn money in the future, if any, on account of said injuries.” Held, not subject to the objection that it allowed a double recovery for the same result. International & G. N. R. Co. v. Butcher, 98 Texas, 462, and Missouri, K. & T. Ry. Co. v. Nesbit, 40 Texas Civ. App., 209, distinguished.</p> <p>3. —Res Gestae—Contemporaneous Statements—Effect as Evidence.</p> <p>Where a plaintiff, in a suit for damages for personal injuries, denied making certain statements under such circumstances as constituted them part of the res gestate, it was error for the trial court to limit by its charge the effect of the testimony of other witnesses, as to the fact that said statements were made, to the impeachment of the plaintiff. Said declarations were evidence of the truth of the facts stated therein.</p> <p>4.—Practice—Defensive Matter—Right to Submission.</p> <p>When a matter of defense is properly pleaded and supported by proof, it is error for the trial court to refuse a special charge distinctly submitting the issue to the jury, the issue not being submitted in the main charge.</p>

<p>1. —Taxes—Assessment—Compliance with Statute.</p> <p>The decisions which require a strict compliance with the law in regard to the assessment of land for taxes in cases of summary sales by the tax collectors by virtue of the tax rolls, should not now control under the law requiring a suit and foreclosure of the lien. If the description given in the assessment is such that by applying it to the land it can be identified, it is a substantial compliance with the requirements of the statute and the tax lien attaches.</p> <p>2. —Same—Description—Omission of Survey Number.</p> <p>Under the present law and procedure for the collection of taxes an omission by the tax assessor of the number of the survey will not invalidate the assessment, provided the land can be identified from the entire description.</p> <p>3. —Appeal—Practice.</p> <p>A Court of Civil Appeals will not decide a question not raised in the trial court.</p>

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

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

<p>1. —Fraudulent Conveyance.</p> <p>Th]e fact thát a grantor who by deed exchanged his real property in Texas for other real estate in California had no other property in Texas at the time, does not, it seems,- establish his insolvency or that his conveyance was made to defraud creditors.</p> <p>2. —Same—Knowledge by Purchaser.</p> <p>The intent of a grantor to defraud creditors by his conveyance does not affect the title of his grantee who paid a valuable consideration without knowledge of such intent.</p> <p>3. —Attachment—Innocent Purchaser.</p> <p>Where a creditor attached and bought in land which his debtor had conveyed by deed prior to but recorded after the attachment levy, he acquired no title if he had knowledge of such conveyance before acquiring his attachment lien. Any one purchasing from him after the debtor’s prior conveyance was recorded had the burden of proving that his grantor’s attachment lien was acquired without notice of the conveyance in order to sustain his title against it.</p> <p>4. —Evidence—Notice.</p> <p>On the question whether an attaching creditor had notice or was put on inquiry as to the existence of a deed from the debtor unrecorded when the writ was levied it was proper to show that about a month before the diced was made such creditor was informed of the details of a pending trade to be closed by such conveyance from the debtor on his title being approved.</p>

<p>1. —Briefs—Ruling on General Demurrer.</p> <p>An assignment, in general terms, of error in overruling a general demurrer, though sufficient as an assignment, must be followed in appellant’s brief by appropriate propositions presenting specific questions of law, in order to entitle it to consideration.</p> <p>2. —Same—Rulings on Evidence.</p> <p>A brief asserting error in the rulings on admissibility of evidence must show the objections made to its introduction.</p> <p>3. —Dormant Judgment—Evidence.</p> <p>In an action on a dormant judgment in Justice Court, rendered against E. & Co., the record showing that defendant appeared in person and by attorney, but failing to show, the citation being lost, who composed the firm, was cited, or appeared, it was permissible to show, by paroi that the citation was against E. alone, doing business under the style of E. & Co., and that he was the person served, appearing, and against whom the judgment was rendered, and on such proof to render judgment against him upon the former recovery.</p>

<p>1.—Master and Servant—Fellow Servant—Common Law—Concurring Negligence—Case Overruled.</p> <p>Even though a master may not he liable for injury inflicted upon a servant by the negligent act of a fellow servant, still when the negligence of the master is an active concurring cause with the negligence of the servant in producing the injury, the master will be liable. In so far as the opinion on a former appeal of' this case, 44 Texas Civ. App., 534, trenches upon the foregoing proposition, the same is overruled,</p> <p>2. —Same—Case Stated.</p> <p>Where a railroad fireman, while under his locomotive engaged in the performance of his duty to clean out the ash-pan, was injured by the moving of the locomotive, and the moving was caused by the concurring negligence of the railroad company in furnishing a locomotive with a leaky throttle, and of the engineer in reversing the lever and releasing the brakes, the -fireman was entitled to recover against the company even though the injury occurred in a jurisdiction where the master was not liable for injuries caused by the negligence of a fellow servant.</p> <p>3. —Charge—Construction.</p> <p>A charge should be considered and construed as a whole. Any charge can be distorted if only garbled portions of it are taken up for criticism.</p> <p>4. —Trial—Contradictory Testimony.</p> <p>The trial court had no authority to reject testimony because of contradiction in it. It is the province of the jury to reconcile such contradictions</p> <p>5. —Personal Injuries—Damages not Excessive.</p> <p>Evidence as to injuries to an arm considered and held sufficient to support a verdict for $7,922.</p>

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

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

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

<p>1. —Conversion—Mortgage.</p> <p>In an action for conversion of plaintiff’s stock of goods by defendant, who held them under a contract which he claimed to be an absolute' sale in discharge of plaintiff’s debt to him, the latter claiming it to have been a mortgage, no charge requiring proof of conversion by defendant was necessary. The nature of the claim asserted by him amounted to conversion if the contract was found to be a mortgage.</p> <p>2. —Same—Damages.</p> <p>In an action for conversion of mortgaged property by the mortgagee, who claimed that the contract was one of absolute sale, the measure of damages was the value of the goods at the time they were transferred ■ less the debt.</p>

<p>1. —Divorce—Property Rights.</p> <p>Where a divorce is refused the court is left without power to adjust the property rights of husband and wife.</p> <p>2. —Husband and Wife—Support.</p> <p>The wife can not maintain an action to require the husband to support her except by way of alimony in a suit for divorce, or by action in the County Court under art. 2979, Rev. Stats., for an allowance for support out of her separate property. But she may maintain injunction against control or management of her separate property by a husband who has abandoned her and repudiated his duties.</p> <p>3. —Same—Judgment.</p> <p>Where a suit by the wife sought divorce from the husband and injunction against his management of her separate lands on the ground of abandonment and nonsupport, the jurisdiction of the court, divorce being refused, was limited to the relief which could be granted under the prayer for injunction. It had no power to award to appellee the possession and control of her separate lands subject to an annual payment to the husband as rent for his community interest therein by virtue of improvements made on such lands.</p>

<p>1. —Homestead—Absolute Deed—Continued Possession—notice.</p> <p>The fact that a husband and wife continued in possession of the homestead after the execution of an absolute deed thereto, would not be notice to a purchaser from the grantee in the deed of any claim of title to the property on the part of the husband and wife inconsistent with their deed; and so of a creditor of the grantee who takes a deed of trust on the property to secure a loan.</p> <p>2. —Same—Deed of Trust—Lien—Taxes.</p> <p>A deed of trust by a. husband and wife upon the homestead to obtain money with which to discharge a lien and pay past due taxes on the same, is valid.</p> <p>3. —Same—Improvement—Deed of Trust.</p> <p>Money loaned to a husband and wife for the avowed purpose of improving the homestead can not be secured by deed of trust on ■ the same although the money was in fact used for said purpose, unless there be at the time a contract duly executed by the wife for furnishing the materials or doing the work necessary for the improvements.</p> <p>4. —Same—Cases Distinguished.</p> <p>Pioneer Savings & Loan Co. v. Everheart, 18 Texas Civ. App., 192; Pioneer Savings & Loan Co. v. Paschall, 12 Texas Civ. App., 613; Bayless v. Standard Savings & Loan Co., 39 Texas Civ. App., 353, and Downard v. National Loan & Inv. Co., 22 Texas Civ. App., 570, distinguished.</p> <p>5. —Same—Payments—Application—Valid and Invalid Liens.</p> <p>Where a note secured by a deed of trust upon a homestead is made up of several items, some of which might legally be secured by such lien and others could not be, payments made on the note by the debtor without direction to which item or items they should be applied, will be applied first to extinguishing the items which constitute a valid lien.</p> <p>6. —Trustee—Payment of Debt—Power to Sell.</p> <p>A trustee has no power to sell property under a deed of trust after the debt to secure which the deed of trust was given has been paid.</p> <p>7. —Same—Sale after Death of Grantor—Case Limited.</p> <p>A sale of property by a trustee in a deed of trust within four years after tire death of the grantor is void. The doctrine announced in Rogers v. Watson (81 Texas, 403) will not be extended so as to make valid after the lapse of four years a trustee’s sale which W'as made within the four years.</p> <p>8. —Homestead—Deed of Trust—Notice to Purchaser.</p> <p>A purchaser of real property at a trustee’s sale will be charged with notice that the property was occupied by the grantors in the deed of trust as their homestead at the time the deed of trust was executed, and this, though the grantors were dead and the property was not occupied as a homestead at the time of the trustee’s sale.</p> <p>9. —Trustee—Power—Revocation by Death.</p> <p>The death of the grantor in a deed of trust revokes the power of the trustee to sell, and the purchaser at such sale is charged with notice of the fact of the grantor’s death when such is the case.</p> <p>10. —Homestead—Deed of Trust—Notice to Purchaser.</p> <p>The very particularity with which debts, to secure which a deed of trust is given, ar,e described as being such as might be secured by lien on a homestead might be sufficient to charge a purchaser at the trustee’s sale with notice that the property was a homestead and to require investigation into the nature of the debts.</p> <p>ON MOTION F.OR REHEARING.</p> <p>11. —Same—Innocent Purchaser.</p> <p>Intimated that the rights of a purchaser at a sale under a deed of trust who pays value and who has no notice that the debt which the deed of trust was given to secure had been paid at the date of the sale, can not be affected by that fact.</p> <p>12. —Same—Lien Partly Valid.</p> <p>The sale of a homestead under a deed of trust to pay a debt therein named will confer no title on the purchaser when a considerable part of the debt to secure which the lien was given, could not be made and was not a valid lien on the homestead.</p>

<p>Appeal from the County Court of Orange County. Tried below before Hon. O. R. Sholars.</p>

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

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

<p>1. —Promissory Note—Failure to Endorse Credits—Judgment not Conclusive.</p> <p>The maker of a promissory note paid from time to time to the agent of the payee sundry amounts with instructions to credit the amounts on the note, which tile agent promised but failed to do; after maturity of the note the payee brought suit for the full amount of the note, interest and attorney’s fee; the citation served on the defendant showed .that the suit was for the face of the note and no credit was given for the payments which had been made; the defendant was in bad health, almost deaf, lived thirty miles from the court, and, being a railway station agent, could not leave his place of business to attend the court without risk of losing his position; he relied on the promise of the plaintiff, at the time the payments were made, to give him credit for the same, and made no defense to the suit; the plaintiff took judgment for the face of the note, interest and attorney’s fee; when execution was issued on the judgment, defendant paid the same and subsequently brought this suit to recover from the payee the sums of money received by him and which he failed to credit on the note and judgment. Held, the judgment in the first suit was not a bar to this suit, nor was the defendant guilty of such negligence in failing to make his defense in the first suit as would preclude him from maintaining this suit.</p> <p>2. —Usury—Recovery.</p> <p>A cause of action to recover usurious interest does not exist until the interest has been actually collected and received by the payee. The recovery provided for in article 3106, Rev. Stats., can only be had in an action therefor and not necessarily by a purely defensive pleading setting up usury and payment; the right of recovery is a cause of action and not a mere defense. Therefore a judgment on a note including usurious interest can not be pleaded in bar of a suit to recover the penalty for receiving usurious interest.</p> <p>3. —Same—Statute Construed.</p> <p>The Act of the Thirtieth Legislature amending article 3106 of the Revised Statutes (Gen. Laws, 1907, p. 277) is prospective, operating only upon payments of usury after the Act took effect.</p>

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

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

<p>1. —Appeal—Brief—Assignment of Error—Buies 29 and 30.</p> <p>An assignment of error as filed in the trial court contained in' the first paragraph explicited complaint that the judgment of the trial court was erroneous, and in subsequent paragraphs or subdivisions stated, in the form of propositions of law, the reasons for the contention. But the assignment as carried into appellant’s brief omitted the first paragraph wherein, the ruling of the court was explicitly complained of and the brief contained only the abstract propositions of law. Held, the brief did not comply with .the requirements of rules 29 and 30 concerning the preparation of briefs, and the assignment was therefore not entitled to consideration.</p> <p>2. —Wills—Construction—Executors—Powers.</p> <p>A will contained the following provisions: “I give to my executors full and ample power to sell and convey and deliver any and all of my estate, both personal or mixed, and to pass a complete title to the purchasers, and the trust above set out shall apply only to the proceeds.” . . . “The time of selling the real estate I may leave is left discretionary with my executors for a period of five years.” . . . “As fast as any real estate is sold by them they shall distribute the proceeds at once.” . . . “Except as to the real estate, my executors shall settle up and distribute my estate as speedily as they conveniently can, and as fast as any real estate is sold by them they shall distribute the proceeds at once.” Held, the executors were vested with power to sell the lands belonging to the estate at any time during five years after their appointment, but not afterwards. It was not the intention of the testator that the executors must sell all the land remaining in their hands after the expiration of five years and divide the proceeds among the beneficiaries named in the will.</p> <p>3. —Same—Power to Sell.</p> <p>The power to sell is not inherent in the office of trustee; he has such powers only as are conferred by the instrument either expressly or by clear implication. A mere direction to divide property will not confer the power to sell; there must be some duty imposed the performance of which would require a sale.</p> <p>4. —Same—Sale by Executors, Invalid.</p> <p>A sale of land by executors considered and held invalid and unauthorized by the will under which they acted when construed as a whole.</p> <p>5. —Same—Agency—Sale on Credit.</p> <p>The power to sell land does not of itself imply authority to sell on credit; the presumption is that the sale is to be made for cash. But when the agent is authorized to sell on such terms as to him shall seem meet, he may grant a reasonable credit. A will construed as a whole, and held not to confer power upon the executors to sell land of the estate for one-fifth cash and the balance on credit, with the last payment maturing four years after date of sale.</p> <p>6. —Administrator—Bight to Sue.</p> <p>After the appointment of an administrator with the will annexed he would have the exclusive right as against the legatees and devisees to sue for the recovery of property belonging to the estate.</p> <p>7. —Executors—Besignation—Termination of Power.</p> <p>It seems that the mere filing of an application by executors to resign their trust would not divest them of their powers as executors; such effect would only be produced when the court had granted the application. ‘</p>

<p>Appeal from the District Court of Eastland County. Tried below before Hon. Thomas L. Blanton.</p>

<p>Appeal from the District Court of Carson County. Tried below before Hon. A. A. Lumpkin, Special Judge. ,</p>

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

<p>Foreign Corporation—Permit to do Business—Pleading.</p> <p>The statute concerning a permit to do business (Art. 745, Sayles Civ. Stats.) applies only to those foreign corporations “desiring to transact business in this State, or solicit business in this State, or establish a general or special office in this State,” hence in a suit by a foreign corporation upon a promissory note, the petition would not be subject to exceptions on the ground that - it contained no allegation that the plaintiff had complied with the requirements of said article unless it appear therefrom that the plaintiff corporation came within the class forbidden to prosecute suits in the courts of this State without a permit.</p>

<p>6. —Appeal—Findings of Fact—Exceptions—Practice.</p> <p>Appeal from the District Court of Anderson County. Tried below before Hon. B. H. Gardner.</p>

<p>Appeal from the County Court of Mitchell County. Tried below before Hon. A. J. Coe.</p>

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

<p>1.—Railways—Connecting Lines—Partnership—Contract—Joint Operation.</p> <p>A contract between connecting lines of railway for the transportation of the traffic and operation of the trains of one over the line of the other considered and held, neither to constitute a partnership, nor such joint operation as would render the connecting line liable for a loss of cotton shipped on contract with and from a station on the line of the other, in the absence of proof that it reached or was carried over such connecting line.</p> <p>2. —Same.</p> <p>A contract between connecting railways held to be, in effect, a trackage arrangement for the operation of the trains of one over the track of the other for a compensation based on 'the cost of maintenance and service and proportionment to the total “wheel miles” of the respective companies over the track, which would not render the owning company liable upon contracts of the other for through transportation of freight originating on the other’s lines carried upon its contract and transported by it over the connecting track in its own trains. But if such contract made the two roads partners or joint carriers of goods, it was only as to property reaching and carried over the track in question; and where the shipment was not shown to be billed or routed over such connection or to have actually reached or been carried over it, or the loss to have occurred thereon, such connecting road was not liable.</p> <p>3. —Action Against Receiver.</p> <p>An action against a receiver of a railway upon a cause of action not growing out of his acts, but originating in transactions of the company prior to his appointment, can only be brought by leave of the court in which the receivership is pending.</p>

<p>Appeal from the County Court of Falls County. Tried below before Hon. W. E. Hunnicutt.</p>

<p>1. —Evidence—Written Instrument—Subscribing Witnesses.</p> <p>Proof of the execution of a written instrument attested by subscribing witnesses can not be made by evidence of the handwriting without showing that the testimony of such subscribing witnesses can not be had.</p> <p>2. —Vendor's Lien—Homestead—Collateral Security—Foreclosure.</p> <p>A note secured by a vendor’s lien against the homestead having been paid by a third party at request of the maker, the latter could foreclose the lien if the transaction was a purchase of the note and transfer of it to him. If the transaction was a payment made for the purpose of discharging the lien, turning over the note by the maker to the one paying it as collateral security for other indebtedness would be the creation of a lien against his homestead and forbidden by law.</p>

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