Volume 60 — Texas Civil Appeals Reports

<p>1. —Carriers—Assistance to Infirm Passenger in Alighting.</p> <p>Evidence considered and held to support a finding of negligence on the part of a railway in the failure of its employees to furnish sufficient assistance to an aged and paralyzed woman passenger in alighting from the train.</p> <p>2. —Same—Contributory Negligence.</p> <p>Evidence held not to show conclusively, and questioned as to its sufficiency to raise the issue of contributory negligence on the part of an infirm passenger in attempting to step down from the train without waiting for assistance from the trainmen.</p> <p>3. —Charge—Assuming Pacts.</p> <p>Instructions are not erroneous in assuming the existence of facts proven and uncontroverted. See example.</p>

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

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

<p>Forced Sale—Exemption—Automobile.</p> <p>An automobile owned by a married man, the head of a family, is included in the term “carriage” in article 2395, Sayles Eev. Stats., and is therefore exempt from forced sale.</p>

<p>Appeal from the District Court of Hill County. Tried below before Hon. Earle McKee, Special Judge.</p>

<p>1. —School Land—Purchase of Timber—Statute Construed.</p> <p>Under the Act of 1895 as amended by the Act of 1897, the right of one who had purchased the timber upon public school land to purchase thereafter the land on which the timber stood, was contractual and vested and could not be impaired or taken away by subsequent legislation. Hence said right was not in any way impaired by the Act of 1901.</p> <p>2. —Same—Purchase of Timbered Land.</p> <p>Under the provisions of article 4218q of Sayles’ Eev. Stats., the purchaser of the timber upon public school land had the right to purchase the land on which the timber stood if the right was exercised within the time and in the manner provided by law; and it was immaterial that at the date of the purchase of the timber he knew that the timber would not be removed from th'e land within five years from said date.</p> <p>3. —Same—Occupancy not Required.</p> <p>To entitle one to become the purchaser of timbered school land it is not required that he be an actual settler thereon.</p> <p>4. —Same—Purchase by Corporation.</p> <p>The Acts of 1895 and 1897 concerning the sale of timbered school land, put no restrictions upon the purchase of the timber, either as to the character of the purchaser or the amount purchased; hence, a corporation was qualified to buy as well as a natural person; and having bought the timber it would have the exclusive right to buy the land by complying with the requirements of the law.</p> <p>5. —Same—Act of 1901 Construed.</p> <p>Under the Act of 1901 the purchaser of the timber upon public school, university or asylum land could not purchase the land simply as owner of the timber, but he must purchase it as classified agricultural or grazing land and upon the same conditions as any other purchaser of land of like class. As owner of the timber he had a preference right to purchase the land during the period he had the right to remove the timber.</p> <p>6. —Patent—Fraud upon State—Who may Attack.</p> <p>When a patent to public school land has been obtained by a fraud practiced upon the State, the title of the patentee is not open to attack in trespass to try title except by the State or by some one having a prior equitable or legal right. ,</p> <p>7. —Public School Land—Actual Settler—Preference Right to Purchase—Acts Construed.</p> <p>The preference right given by the Act of 1895 to actual settlers upon school land to purchase the same was repealed by the Act of 1897. Hence one who settled upon school land in 1891 with the intention of purchasing the same, but failed to take the steps required by law until the Act of 1895 was repealed, had no preference right to purchase the same as against one who had in the meantime become vested with the right to purchase.</p> <p>8. —Same—Recording List—Negligence of County Clerk.</p> <p>The failure of a county clerk to record in the book provided for that purpose a list of appraised and classified school land received from the Commissioner of the General Land Office, will not excuse an actual settler upon school land, who intended to purchase the same but who did not know that the list had been received, from taking the steps prescribed by law to preserve and exercise his preference right to buy.</p>

<p>1. —Appeal—Defective Assignment of Error—Practice.'</p> <p>An appellee is entitled to be apprised by appellant’s brief of the precise issue he must meet; when therefore it can not be determined from the assignment of error, the propositions, the statement nor the authorities in appellant’s brief whether appellant objects to a finding of fact by the trial court, or to the failure to make the contrary finding on the ground that there was no evidence to sustain the court’s finding, or that the undisputed evidence required the contrary finding, or that the finding is against the great weight and preponderance of the evidence, the assignment is not entitled to consideration.</p> <p>2. —Taxation—Valuation—Discrimination.</p> <p>In a suit to enjoin the collection of taxes on the ground that the Commissioners’ Court had assessed the property of resident taxpayers at two-tliirds its value, but had assessed the property of plaintiff, a nonresident, at its full value, the plaintiff should have required of the court specific findings, first, as to whether the property of other persons was assessed at two-thirds its value; and second, whether in fact plaintiff’s property was assessed at a higher rate in proportion to its fair cash market value. A simple finding by the court that plaintiff’s property was worth as much or more than the value placed upon it, does not decide the issue.</p> <p>3. —Same—Valuation—Evidence.</p> <p>In a suit to enjoin the collection of taxes upon a large body of timbered land consisting of many different tracts, on the ground that it had been overvalued by the Commissioners’ Court, it was not reversible error, under the circumstances of this case, notwithstanding the provisions of article 5088, Rev. Stats., to permit witnesses to testify as to the value of the timber per thousand feet on the body of land taken as a whole, the case having been presented and tried upon the issue of the alleged over-valuation of the entire body of land.</p> <p>4. —Same—Irrelevant Evidence.</p> <p>The issue being whether or not plaintiff had been discriminated against in the valuation of his lands for taxation by the Commissioners’ Court, testimony as to an agreement among the members of the court to stand by their valuation of property regardless of evidence, was irrelevant to any issue in the case, although it had been shown that said court had refused plaintiff’s request to reduce the valuation of his lands.</p> <p>5. —Appeal—Defective Assignment.</p> <p>An assignment of error can not be considered as a proposition when it embraces four separate and distinct matters having no relation to each other in which it is alleged the court erred.</p> <p>6. —Taxes—Tender—Interest.</p> <p>A tender of less than the entire amount of taxes due will not stop the accrual of interest on the amount tendered. A tax collector can not be required to accept a part of the taxes due upon the taxpayer’s claim that that was all that was due.</p> <p>7. —Appeal—Cross Assignment of Error—Rule 101.</p> <p>A cross assignment of error can not be considered when it does not appear in the transcript and there is no certificate of the clerk that a copy of appellee’s brief, in which it appears, was filed with the clerk as required by rule 101 for the District and County Courts.</p>

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

<p>1.—Demurrer—Assignment of Error.</p> <p>An assignment of error in ruling on a demurrer is not available to appellant where the record shows no ruling thereon.</p> <p>Error of the court in finding a fact unsupported by evidence is not ground for reversal where the fact is not material to the issues involved.</p> <p>3.—Executory Contract—Assignment of Proceeds—Equities of Parties.</p> <p>An assignment by a subcontractor of a part of - the sum to become due to him in the future upon his executory contract, not accepted by the principal contractor, is subject to the equitable rights of the latter which may arise during the performance. If it becomes necessary to make advances to the subcontractor in order to enable him to perform his contract, the principal contractor has a right, for his own protection, to do so in disregard of the claim of such assignee.</p>

<p>Abandonment of Action—Appeal.</p> <p>Where the complainant in a proceeding in the County Court to set aside the probate of a will, after announcing ready, declined to introduce any evidence, this was properly taken to be an abandonment of the action, precluding plaintiff from appealing to the District Court and prosecuting the proceeding in a trial de nova there.</p>

<p>1.—Statutory Construction.</p> <p>The principles of statutory construction, that the intent of the Legislature should prevail over the literal meaning of its language; that such intent is to be derived from the entire law; that the previous law and the construetian given it should be considered; and that the literal construction of a special clause, if inconsistent with other provisions should not be allowed, etc., stated and illustrated.</p> <p>2. —liquor License—Druggists.</p> <p>A druggist, under the Act of April 17, 1909, Laws First Called Session, Thirty-First Legislature, 293 (Robertson-Fitzhugh Bill) may obtain license to sell intoxicating liquors in quantities of one gallon or less, not to be drunk on the premises, upon prescription or otherwise, upon payment of the tax required of a liquor dealer, but without obtaining permit from the Comptroller or complying with the other requirements of the law governing the license of retail liquor dealers.</p> <p>3. —Same.</p> <p>The language of section 2 of the Act of April 17, 1909 (Robertson-Fitzhugh Liquor License Law), making “any person who sells intoxicating liquors in quantities of less than one gallon” subject to the provisions of that Act, does not apply such provisions to druggists selling liquor as an incident to their business. Its literal construction is incompatible with the general purpose of the law which manifests the intent to subject them to the payment of the tax required, but not to the other conditions imposed on retail liquor dealers, such as closing hours, permitting presence of minors, etc. •</p>

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

<p>Timbered School Land—Purchase—Statute Construed.</p> <p>A purchaser of the timber upon public school land has a preference right to purchase the land itself by compliance with the provisions of the statute relating thereto. Actual occupancy of the land is not required of such purchaser. For companion case, see Wing v. Dunn, ante.</p>

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

<p>1. —Special Verdict—Failure to Find on Issue—Judgment.</p> <p>Where a case is submitted to the jury upon special issues the judgment must be based upon their findings thereon. The right of the court to supply findings on any question is limited to _ issues not submitted and which there was no request to submit. He can not supply answers to questions submitted but upon which the jury failed to make findings.</p> <p>2. —Same.</p> <p>Where the verdict of a jury upon a special issue submitted to them (i. e. whether improvements on real property during marriage were paid for with separate means or with that of the community) is that they can not answer, the court, if entitled to render judgment on this as a finding against the party having the burden of proof on the issue, could not award affirmative relief to the wife on the presumption that community funds made the improvements. Such presumption does not obtain as to improvements on separate property of one of the spouses.</p> <p>3. —Same.-</p> <p>The reply of the jury, to a special issue submitted to them in the form of a question, that they “can not answer” can not be properly treated as a finding that the party having the burden has failed to present the necessary evidence in support of his claim. Their inability to answer might be due to disagreement among themselves. Such verdict is not an answer, but a declining to answer.</p> <p>4. —Husband and Wife—Separate Property—Improvements with. Community Funds—Pleading. •</p> <p>The right of one marital partner asserting ownership of community funds used in the improvement of separate property of the other, does not attach to the property in specie, but is an equitable claim which may be made a charge against the property and the claimant must plead the amount and character with sufficient certainty to form the basis of a judgment for a definite sum. Pleading held insufficient under this rule.</p>

<p>1. —Jury—Disregarding Evidence.</p> <p>Where the verdict is in disregard of the direct evidence of an uncontradicted and unimpeached and disinterested witness, a new trial should be granted.</p> <p>2. —Same—Deed—Mortgage—Homestead.</p> <p>The fact that a deed was upon its face an absolute conveyance does not furnish such contradiction to the evidence of a witness (the notary taking its acknowledgment) that the grantee agreed to reconvey on payment of a debt which it was given to secure, as to justify the jury in disregarding his testimony and finding the instrument to be an absolute conveyance, and not a mortgage, of grantor’s homestead.</p>

<p>1. —Appeal Bond—Surety.</p> <p>A surety on plaintiff’s bond for costs may become surety on his appeal bond. He is not a party to the action.</p> <p>2. —Anti-Trust Law.</p> <p>An agreement by which one party undertakes not to sell any goods except those purchased from the other during the life of the contract, is not prohibited by the statute against unlawful combinations in trade.</p> <p>3. —Contract—Termination—Settlement.</p> <p>By a contract in which through a term of years defendant was to purchase, at prices fixed, certain patterns and publications from plaintiffs who were to carry for defendant a “standing credit” of $200 which upon the termination of the contract might be discharged by return of patterns purchased, unopened, and in good saleable condition, defendant, if entitled to terminate the contract before its expiration, did not have the right to settle its indebtedness by such return of patterns purchased except to the extent of such “standing credit.”</p> <p>4. —Contract—Settlement—Waiver.</p> <p>The issue of waiver by plaintiff of the right to recover for goods sold and delivered by accepting return of the goods from defendant, was improperly submitted in the absence of evidence that they were received or accepted by plaintiff.</p> <p>5. —Waiver—Pleading.</p> <p>Waiver of the terms of a contract must be pleaded by the party asserting it.</p>

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

<p>1. —Telegraph Company—Death Message—Negligent Delay—Contributory Neg- ■ ligence.</p> <p>Where, in a suit against a telegraph company for damages for negligent delay in delivering a death message whereby the addressee was prevented from being present at the burial of her brother, and the defendant plead that the addressee was guilty of contributory negligence in not procuring and using a livery team by which means she could have reached the cemetery before the interment notwithstanding the delay in delivering the message, evidence considered and held sufficient to support a verdict finding in effect that the addressee was not guilty of contributory negligence.</p> <p>2. —Same—Mental Anguish—Charge—Assumption of Fact.</p> <p>Where it appeared from the uncontradicted evidence that the addressee of a telegram suffered mental anguish by not being present at the burial of her brother, it was not error for the court to assume such fact as proved in its charge.</p> <p>3. —Practice—Refusal of Charge. '</p> <p>A special charge which, in grouping the facts, omits a material fact, is properly refused. And so, when the main charge fully covers the issue presented.</p> <p>4. —Mental Anguish—Verdict not Excessive.</p> <p>A verdict for $1,000 held not excessive nor necessarily the result of prejudice, sympathy or other improper motive in a suit for damages for delay in delivering a death message.</p>

<p>Carrier—Failure to Furnish Cars—Sale of Cattle—Measure of Damages.</p> <p>When a carrier fails or refuses to furnish cars for the transportation of cattle at the time agreed upon, and the owner of the cattle afterwards and while waiting for the cars sells the cattle, the true measure of damage is the difference between the market value of the cattle at the destination to which they were to have been carried at the time when they would have arrived there if the carrier had performed its contract, and their value at the same time at the place from which they were to have been shipped, less the freight.</p>

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

<p>Telephone Company—Failure to Furnish Service—Not liable, when.</p> <p>Two connecting telephone companies had an arrangement whereby they would handle calls between the stations of C. on the line of one and S. on the line of the other; neither of the companies offered to handle calls for the public between the stations of C. and B., the latter being a station on the same line but beyond S. Held, there being no duty imposed by law or contract on the companies either jointly or severally to afford means of telephonic communication between persons in C. and R., neither of said companies was liable in damages for a failure to furnish such communication.</p>

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

<p>1.—Judgment—Control of—Issuance of Execution.</p> <p>After a judgment creditor has formally sold and assigned his entire interest in the judgment he has no right to order the issuance of execution on the same; and a sale of the judgment debtor’s property under and by virtue of an execution so issued, the original judgment creditor being the purchaser, will be annulled at the instance of the judgment debtor.</p> <p>3.—Same—Statute Construed.</p> <p>The duty imposed upon clerks of courts by article 2324 Eev. Stats, to issue execution upon unpaid judgments after adjournment of court, does not arise until application is made therefor by the owner of the judgment and will not authorize the issuance of an execution upon the request of one not the owner of the judgment.</p>

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

<p>1. —Landlord—Interest in Crop—Eight of Action.</p> <p>A landlord who is to receive as rental for his land a part of the crop raised by the tenant, has such an interest in the crop as will support an action against a railroad company for damage to the crop by overflow.</p> <p>2. —Eailroad—Flooding Land—Partial Liability.</p> <p>If a railroad company either constructs an embankment partly on its right of way, or maintains such an embankment when constructed by another, the company would be liable for such part of the damages as might be caused by overflows resulting from such part of the embankment.</p>

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

<p>1. —Contract—Breach—Exemplary Damages—Pleading.</p> <p>Exemplary damages are not recoverable for breach of contract unaccompanied by tort, and the tort must be so pleaded as to show a cause of action for exemplary damages independently of any right to recover actual damages for the breach of the contract alone. A general allegation that the breach of the contract was wilful and wanton will not be sufficient. Pleading and evidence considered and held insufficient to support a verdict for exemplary damages for breach of a contract to furnish plaintiff telephone service.</p> <p>2. —Telephone Company—Contract—Construction.</p> <p>A contract with a telephone company stipulated that in consideration of the promise and agreement of the patron to pay to the company the sum of two dollars per month, it would furnish the patron with a telephone and give him telephone service for one year, and at the expiration of the year the lease should be considered renewed from month to month upon the payment of two dollars per month in advance. Held, (1) after the expiration of one year said contract was for one month’s service renewable each month upon payment in advance of the monthly rental, and upon failure to pay or tender payment in advance each month the company had the right to discontinue the service; (2) a tender in advance for the service of any one month would entitle the patron to the service for that month, and the fact that the patron was in arrears for past months would not give the company the right to discontinue the service; and (3) a tender of the rental to a lineman who was not authorized to receive the money was not a sufficient tender, nor was leaving the money with a third party and notifying the company of that fact.</p> <p>3. —Same—Contract—Waiver—Presumption of Authority.</p> <p>Where a patron of a telephone company called over the telephone for the company’s office and the company’s exchange operator gave him connection with some telephone from which an answer was received to the effect that the company would, in compliance with the request of the patron, send to a certain place and receive money left there by him for telephone rents, it will be presumed that the answer and promise was made by some one authorized to reply to the request so communicated. And such promise was a. waiver of the right of the company to have the rents paid at its office as required by the contract.</p> <p>4. —Same—B,eceipt for Bents—Construction.</p> <p>A receipt for telephone dues wherein, opposite the item “balance due of bills previously rendered,” no amount was stated, is in effect a statement that all previous bills for rent had been paid, and in the absence of evidence to the contrary would support a finding that the patron owed no back rents.</p> <p>5. —Trial—Burden of Proof—Charge.</p> <p>The burden of proof does not shift at any time in the trial of a cause though the weight of the evidence often does, and it is never permissible for the trial court in any case in which the affirmative facts necessary to sustain plaintiff’s suit are controverted by any evidence offered by defendant, to charge the jury that the burden of proof on such facts is upon the defendant.</p> <p>6. —Same—Comment by Judge—Error.</p> <p>There being evidence that a telephone company had at times sent collectors to the places of business of the users of its telephones for the purpose of collecting the telephone rents, but the evidence not being sufficient to establish a custom of this kind binding upon the company, it was reversible error for the trial judge to state in the hearing of the jury that if the company sent a collector to one subscriber there was no reason why it should not do so with all, the issue being whether or not the subscriber in question had made a sufficient tender of the rents by leaving the same with a certain party and notifying the company.</p>

<p>Application for mandamus by Peter Black and wife against Gayle T. Snedecor. Tried before Hon. Geo. C. Baker, Jr.</p>

<p>1.—Mortgage—Verbal Exception of Property.</p> <p>A mortgage described specifically three tracts of land, certain tanks, pipe lines, etc., and added, “also any and all other property, real, personal or mixed, row owned by the party of the first part, situated in Jefferson County;” the evidence showed that it was understood by the parties that the mortgage did not and was not intended to include certain tank cars owned by the mortgagor; upon default in the payment of the indebtedness secured by the mortgage, the trustees therein named sold the mortgaged property at public auction, and the mortgagee became the purchaser, and immediately transferred to a third party its rights under the bid. Held, the transferee of the bid' acquired no right or title to the tank cars, but the title to the same and the right of possession remained in the mortgagor.</p> <p>2. —Receivership—Possession of Property—Conflicting Claims—Interpleader.</p> <p>When a railroad company is in possession as bailee of certain ears, the title to and right of possession of which is in dispute between the receiver of a corporation and another party, the railroad company will be allowed a reasonable time within which to determine its rights by filing a bill of inter-pleader in the receivership case, before being adjudged guilty of conversion of the cars by reason of a refusal to comply with a demand for possession by the party ultimately adjudged entitled to the same. In a suit by the receiver of a corporation against a railroad company for damages for conversion of ears, pleading and evidence considered, and held to support a judgment for the defendant.</p> <p>3. —Same—Order of Court—Complete Defense.</p> <p>Where, pending a receivership, there is a controversy between the receiver and' a third party concerning the title and possession of certain cars then in the actual possession and use of a railroad company, an order by the court directing the railroad company to pay to the third party the mileage and revenues owing for the use of the cars, is a complete defense to a subsequent suit by the receiver against the railroad for said mileage and revenues paid in accordance with the order of the court.</p>

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

<p>1. —Plea of Privilege—Assignment of Claim.</p> <p>Owners of a claim transferred it to plaintiff with guaranty of recovery and he sued them and the debtor in the county of the residence of one of the guarantors, the debtor pleading his right to be sued in his own county. It appearing from a written contract cotemporary with the assignment that the consideration was that the assignors were to be paid the amount recovered, less ten percent to be retained by the assignee, and were to assume liability for costs, the assignors appeared jointly interested with the assignee, and not adversely to him in the cliam sued on, and defendant could not be deprived of his privilege by making them defendants.</p> <p>2. —Same.</p> <p>Where the assignment of a claim was only colorable and done to enable the assignee to sue the debtor, not in the county of his residence but in that of the assignor, his plea of privilege should be sustained. Evidence considered and held to establish such defense.</p> <p>3.—Plea of Privilege—Waiver—Continuance.</p> <p>' Defendant who had plead in abatement his right to be sued in the county of his residence, and asked trial of such issue in limine, did not, when the court refused such trial until the submission of the case on the merits, waive his plea by taking a continuance for testimony on the main issues.</p>

<p>1. —Carrier—Delay.</p> <p>The duty of a carrier of live stock is, not to transport and deliver within a reasonable time, but to exercise ordinary care so to do.</p> <p>2. —Carrier—Negligence—Charge.</p> <p>Where various grounds of negligence were alleged, but some were unsup- . ported by proof, it was error to submit all the alleged grounds as warranting a verdict for plaintiff if established.</p> <p>3. —Damages—Market Value.</p> <p>Where cattle are injured in shipment, market value at destination is the basis for measuring damages, if they have a market value there.</p> <p>4. —Charge.</p> <p>See charge held not to be on the weight of evidence by assuming the existence of negligence.</p> <p>5. —Evidence—Opinion—Value.</p> <p>A witness familiar with market value of cattle generally at a given place and time may testify as to difference in values as showing damages by mishandling of stock shipped to that point by rail, though he possessed no special knowledge as to their market value there after undergoing railroad shipment, it being a feeding and not a marketing point.</p> <p>6. —Evidence—Practice.</p> <p>Testimony should not be excluded on objections affecting merely its weight; and only the objections urged below will be considered on appeal.</p>

<p>Appeal from the District Court of Falls County. Tried below before Hon. Richard I. Munroe.</p>

<p>1.—Benefit Insurance Company—Insolvency.</p> <p>A fraternal insurance company, depending on dues and assessments of members to meet its liability for losses, is not insolvent because the funds on hand are insufficient to meet death losses suffered and its management refuses to assess its members in a sum sufficient to raise such amount, where the losses in question are not yet due, being payable in monthly installments for one hundred or more months, all installments due have been paid, and the company is a going concern with prospects of meeting such installments as they mature.</p> <p>2.—Same.</p> <p>Where the State sought the appointment of a receiver for a fraternal assessment insurance company as an insolvent concern, its insolvency did not appear from the fact that it had no present cash assets sufficient, at interest, to discharge death losses already incurred but payable only in monthly installments. It could not be compelled to adopt such method of providing for their payment or raise by assessment, in advance of the maturity of such obligations, a present fund sufficient to meet them; and its power to raise money by assessment as the same might become necessary was to be considered in determining its solvency.</p>

<p>1. —Carrier—Limiting Liability—Notice—Express Receipt.</p> <p>A carrier being prohibited from limiting its common law liability by notice or by stipulation in its bill of lading (Rev. Stats., art. 320) a statement in the receipt given by an express company that it would not be liable for the loss of jewelry unless separately packed, sealed ■ and marked as such, would not defeat its liability for a diamond ring packed in an unsealed box, with photographs and letters, not marked as jewelry, and lost in transportation.</p> <p>2. —Carrier—Valuable Articles—Disclosure of Contents.</p> <p>The shipper was under no duty to disclose to the carrier, unless asked", the contents of the package (a valuable diamond ring). An inquiry whether it contained anything breakable or requiring special attention did not call for such disclosure, a negative answer as to the first inquiry being correct, and the latter one being naturally understood in that connection as referring to liability to be injured by handling with ordinary care.</p> <p>3. —Carrier—Valuation of Articles—Limited Liability.</p> <p>The consignee is bound by the representations as to the value of a package shipped to him by another by his direction, as fully as though the statements were made by himself.</p> <p>4. —Same.</p> <p>Where the shipper misrepresented the value of the article (a diamond ring worth $250 but valued at $25) the carrier, an express company, was released from its liability as an insurer at common law, but was not relieved from all liability and might be held as an ordinary bailee for its loss by negligence.</p> <p>5. —Same—Negligence—Burden of Proof.</p> <p>The fact that the property was accepted by the carrier for transportation and lost while in its custody, made a prima facie case of negligence on its part; and it was error, in the absence of other proof of negligence or of evidence by the carrier of due care, to give a peremptory instruction to find for defendant, though it was liable only for negligent loss, and not as an insurer.</p>

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

<p>1. —Husband and Wife—Community or Separate Property—Evidence.</p> <p>In a suit for divorce, evidence considered and held to raise an issue of fact whether or not certain property in which the wife claimed an interest was purchased with the separate funds of the husband, and it was therefore error for the court to instruct a verdict.</p> <p>2. —Divorce—Alimony—Pleading and Practice.</p> <p>In the partition of community property in a divorce proceeding the community estate should be charged with alimony received by the wife during the pendency of the suit, and under proper pleading and evidence the amount paid should be determined by the jury.</p> <p>3. —Same.</p> <p>Pending a suit for divorce, if there be no community estate,, the husband may be required to maintain the wife out of his separate estate; but if there be community estate the revenues therefrom should be charged with the burden, and the amount so paid by the husband should be taken into account in the division of the community property when the divorce is granted. If the amount paid as alimony exceeds the wife’s one-half of the rents and revenues of the community estate, this should be paid by the husband and should not be made a special charge upon the wife’s half of the corpus of the community estate.</p> <p>4. —Same—Appropriation of Funds—Accounting.</p> <p>Upon granting a divorce and decreeing a partition of the community estate, each spouse "should be charged with one-half of community funds or property appropriated by him or her.</p> <p>5. —Alimony—Execution to Collect—Appeal from Order.</p> <p>An order of a judge directing the issuance of an execution to enforce the collection of unpaid alimony is not such a final judgment as that term is used in art. 1383, Sayles’ Civ. Stats., as may be appealed from.</p> <p>6. —Divorce—Alimony—Appeal.</p> <p>A wife is entitled to alimony pending an appeal from a decree of divorce as well as before the decree was rendered.</p> <p>7. —Same.</p> <p>No appeal lies from an order granting alimony, and an appeal from the judgment granting or refusing a divorce does not suspend the operation of the order for alimony nor the power of the judge to enforce its payment.</p> <p>8. —Same—Appointment of Receiver.</p> <p>An appeal by supersedeas bond in a suit for divorce puts the property as well as the cause of action under the jurisdiction of the appellate court, and the appellant would be entitled to the possession and control of the property pending the appeal; the trial court therefore would have no authority to appoint a receiver on the application of the appellee and direct him to take the property from the possession of the appellant and administer it as directed by the court.</p> <p>9. —Receivership—Harsh Remedy.</p> <p>A receivership is always a harsh and expensive proceeding, and when the rights of the applicant therefor can be fully protected in some other way, a receiver should not be appointed.</p> <p>ON BEHEAKING.</p> <p>10. —Separate Property—Increase—Charge.</p> <p>In a suit for divorce by the wife against the husband and for partition of property, the defendant claimed some of the property as his separate estate because bought during the marriage with the proceeds of the sale of property owned by him at the time of marriage, such property selling for much more than the price originally paid for it; the court charged the jury that the separate property of the husband would consist of property “paid for by him out of his separate means acquired by him prior to his marriage.” Held, subject to the construction that property bought with the proceeds of the sale made after his marriage of property owned by him before marriage should not be regarded as property “paid for out of his separate means acquired prior to his marriage,” and a charge requested by the husband to the effect that property purchased with such proceeds would be the separate property of the husband, should have been given.</p>

<p>1. —Land Agent—Commissions—Contract—Evidence.</p> <p>In a suit by a land agent against C. and H. jointly for a sum of money claimed to be due him by defendants for services rendered in finding for defendants such bodies of land as they wished to purchase and putting them in communication with the owners thereof, evidence reviewed and held insufficient to support a finding of the trial court that C. and H. were jointly interested in said deal, and that they agreed to buy said lands for their mutual profit, or that the lands were dealt with by them as their joint property.</p> <p>2. —Same—Pleading and Proof—Variance.</p> <p>An allegation that plaintiff was entitled by express contract to reasonable compensation for services rendered in a land deal, is not supported by proof of a contract that plaintiff was to have one-third of the commission paid to and received by one of the defendants.</p>

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

<p>1. —Judgment—Jurisdiction—Collateral Attack.</p> <p>A judgment of a domestic court of general jurisdiction regular on its face can not be collaterally attacked by evidence aliunde the record concerning any jurisdictional fact which the court must have passed upon in rendering judgment.</p> <p>2. —Same—Probate Court—Administration.</p> <p>A judgment of a County Court, sitting in matters of probate, appointing an administrator and assuming jurisdiction of the estate of decedent and not shown to be void on its face, is binding upon the parties affected until regularly vacated or set aside by a direct proceeding for that purpose.</p> <p>3.—Same.</p> <p>A County Court is a court of general jurisdiction in probate matters and its judgment in appointing an administrator of an estate can not be attacked collaterally on the ground that the decedent did not reside in the county where the administration was opened.</p> <p>4.—Administration—Allowance of Claim—Appeal.</p> <p>An heir to an estate nos a right to object to the allowance and approval of a claim against the estate and to appeal from a judgment approving the same.</p>

<p>Railroad—Road Crossing—Signals—Statute Construed.</p> <p>TIxe statute (art. 4507) requiring the whistle on a locomotive to be sounded within eighty rods from a public crossing, and the continued ringing of the bell, was intended only for the protection of those using or about to use such crossing; hence the giving in charge to the jury the provisions of said article in a case where animals were killed by a railroad train at a point from 250 to 350 yards distant from a crossing, was reversible error, under the facts of this case.</p>

<p>1. —Final Judgment—Justice Court.</p> <p>A judgment entry in a Justice Court was as follows: “The plaintiff in this case failed to prove value of animal killed and the court renders verdict in favor of defendant, from which the plaintiff gives notice of appeal.” Held, under the liberal rule which obtains in the construction of judgments rendered by Justice Courts, sufficient to show a final adjudication of the issues and to support an appeal to the County Court.</p> <p>2. —Railroads—Killing Animals—Negligence—Insufficient Evidence.</p> <p>Plaintiff’s horse was killed at a place where the defendant railroad was not required to fence its track; the accident occurred at night and there was no eye witness; plaintiff testified that he heard a locomotive whistle as a train passed on the night of the accident; that the track was straight and clear of obstruction for about one mile west of where the horse was killed; that the engine was equipped with a headlight and that the train was going pretty fast. Held, insufficient to show that the horse was killed through the negligence of the defendant railroad company.</p>

<p>1. —Libel—Plea of Justification.</p> <p>A firm of merchants advertised a reduction sale of “Thirty Thousand Dollars worth of merchandise,” the sale to be managed by the agent of a foreign company; a mercantile corporation in the same town a few days before the date of the reduction sale published a circular headed “Thirty Thousand Dollars worth of facts given away absolutely free,” in which special sales conducted by foreign managers were denounced in terms that reflected discreditably upon the merchant who employed such managers; the firm sued the corporation for libel, alleging that said circular was a libel published of and concerning them, their said sale and business; that the same seriously interfered with said sale and injured the reputation and business of the plaintiffs as merchants, and subjected them as merchants and individuals to .disgrace, humiliation and loss; the defendant answered specially, among other things, “that any and all allegations and statements set forth in said circular sued upon herein are true and correct.” Held, said answer was insufficient as a plea of justification, because it did not allege the truth of said libelous charges against the plaintiff in the sense imputed to them in the innuendo.</p> <p>2. —Same.</p> <p>When a libelous publication does not refer by name to the plaintiff who bases a suit for libel thereon, and its application to plaintiff is made to appear only by innuendo, a plea of justification which merely avers the truth of the several statements contained in. the publication, without admitting its application to plaintiff, is insufficient; the plea should allege the truth of the several statements in the sense imputed to them in plaintiff’s petition.</p>

<p>1, —Public Land—Void Lease—Improvements in Good Faith.</p> <p>A lessee of public land from the State, who, under advice from the Land Commissioner that the lease was lawful, in good faith places permanent and valuable improvements on the hind during the term of the lease, is entitled to recover the value of such improvements in a suit of trespass to try title by said lessee against a subsequent purchaser of the land from the State, even though the lease be adjudged void.</p> <p>2. —Same—Measure of Damages.</p> <p>The measure of damages for the loss of permanent improvements placed upon land leased from the State would be the amount the value of the land was enhanced by the use of said improvements during the unexpired period of the lease.</p> <p>3. —Same—Rent Pending Suit.</p> <p>One who purchases land from the State is entitled to recover its rental value from one who unlawfully deprives him of its use pending litigation for possession.</p> <p>4. —Rental Value—Evidence.</p> <p>Certain witnesses having testified to the number of cattle a tract of land would pasture, and other witnesses having testified that the rental value of the land was a certain sum per head for all cattle it would pasture, the two together gave a definite rental value to the land.</p> <p>5. —Public Land—Lessee—Removal of Improvements.</p> <p>Claims for improvements made in good faith upon the land of another are allowed on principles of equity; therefore when the lessee of public land shows a good excuse for failure to remove his improvements within the sixty days allowed by statute (Sayles* Stats., art. 4218-s), and the same are appropriated by a purchaser of the land, the purchaser should be required to account for the value of such improvements.</p>

<p>1. —Citation in Error—Return Without Service—Diligence.</p> <p>When an officer in making his return upon a citatiton in error states as a fact within his knowledge that the defendant is not in his county, he is not required to set forth the diligence used to serve the writ, as in other cases where the writ is returned not served.</p> <p>2. —Same—Alias Citation—Failure to Endorse.</p> <p>The failure to endorse upon a citation in error that it is an alias citation is immaterial when that fact appears in the body of the citation.</p> <p>3. —Identity of Names.</p> <p>The mere fact that a defendant in error has the same name as counsel for plaintiff in error is not enough to warrant an appellate court in assuming that they are one and the same person.</p> <p>4. —Citation in Error—Service.</p> <p>When, in a writ of error proceeding, a county is a party defendant, the fact that the county judge of the county was one of the attorneys for the plaintiff in error would not deprive the plaintiff in error of his right to perfect his writ by service on the attorney as county judge.</p> <p>5. —Eminent Domain—Waiver of Damages—Evidence.</p> <p>The mere fact that the owner of the land was present when a jury of view laid out a road across his land, and, while objecting to the road going across the land instead of on one of the lines, never thereafter presented any claim for damages, is not sufficient to support a contention that the owner assented to the taking of his land and waived his claim for damages.</p> <p>6. —Claim -Against County—Suit—Rejection by Commissioners’ Court.</p> <p>A suit against a county for damages for opening a public road across plaintiff’s land can not be maintained until the claim has first been presented to and rejected by the Commissioners’ Court.</p> <p>7. —Sheriff—Liability of Bondsmen—Pleading.</p> <p>In a suit against a sheriff and his bondsmen the petition alleged that the sheriff, under color of his official position and in excess of his legal powers and jurisdiction, cut, removed and destroyed plaintiff’s boundary fences, thereby allowing cattle to depredate upon the crops; and the sheriff by the exercise of his official power and position coerced, threatened and intimidated plaintiff from rebuilding the fences. Held, insufficient in charging such an official act on the part of the sheriff as would make his bondsmen liable.</p> <p>8.—Same.</p> <p>When a sheriff in opening a public road does no more than he is commanded by the Commissioners’ Court to do, the writ or order of the court will protect him and his bondsmen; on the other hand, when he proceeds -without any warrant or writ whatsoever, his act is that of an individual, or at most done by color of office, and his sureties would not be liable.</p>

<p>Appeal from the County Court of Collin County, Texas. Tried below before Hon. John Church.</p>

<p>Appeal from the County Court of Hunt County, Texas. Tried below before Hon. J. W. Manning.</p>

<p>1. —Jurisdiction—Collection of Taxes.</p> <p>The County Court alone has jurisdiction to restrain the collection of taxes when the amount of taxes involved is more than $200 and less than $500, notwithstanding the general power conferred upon District Courts to issue writs of injunction and mandamus.</p> <p>2. —Same—Pleading.</p> <p>In a suit by two banks against the tax collector and others, pleading considered and held to evidence a suit simply to enjoin the collection of alleged illegal taxes, and not to be a suit to remove cloud from title, hence the District Court had no jurisdictioñ, the amount in controversy being $374.20.</p>

<p>Appeal from the 14th Judicial District, Dallas County, Texas. Tried below before Hon. Kenneth Foree.</p>

<p>1. —Bill of Exchange—Equitable Assignment.</p> <p>An unaccepted draft or check drawn upon no. particular fund is not an equitable assignment of any fund the drawer may have in the hands of the drawee.</p> <p>2. —Banks and Banking—Receipt of Draft—Rights of Depositor.</p> <p>A draft was presented to a bank for deposit and the amount of the same was entered in the pass book of the depositor, but because the bank was in a failing condition the transaction was not entered on the books of the bank; the bank did fail that day and the draft was returned to the depositor. Held, the rights of the depositor against the drawee in the draft were the same as if the draft had never been presented to the bank.</p> <p>3. —Same—General Deposit—Legal Effect.</p> <p>When money or its equivalent is deposited in a bank without any special agreement the law implies that it is to be mingled with the other funds of the bank, the relation of debtor and creditor is created between the bank and the depositor, and the deposit is general, and the bank becomes the owner of the fund.</p> <p>4. —Same—Special Deposit.</p> <p>When money or its equivalent is deposited in a bank with an accompanying agreement that the identical thing deposited shall be returned or that the same shall be paid out for a specific purpose, the transaction is a special deposit and the relation of bailor and bailee is created. In such case the bank acquires no title thereto and is a mere trustee for the safekeeping, return or disbursement of the fund, according to the special contract by which the deposit is made.</p> <p>5. —Same—Case Stated.</p> <p>A fund was deposited in one bank to the credit of a second bank upon an agreement between the depositor and both banks that the fund was to be drawn against by the second bank only for the payment of a certain class of claims. Held, the deposit was a special deposit and the transaction was not an ordinary commercial transaction; the fund did not belong to the second bank and could not be recovered by it or its receiver.</p> <p>6. —Same—Equitable Assignment.</p> <p>When it is established that it was the intention and agreement of the parties to a transaction that a check drawn generally should be paid out of a particular fund, such check as between the parties will be treated as an order for payment out of that fund, and is pro tanto an assignment of the fund.</p>

<p>1.—Carrier—Delay in Transit—Measure of Damages.</p> <p>A carrier’s liability for a failure to transport freight within a reasonable time is ordinarily limited to such damages as are the natural result of such failure or such as may fairly be supposed to have entered into the contemplation of the parties at the time the contract for transportation was made as a probable result of its violation; and the measure of damage is the difference between the value of the property shipped at the time it did arrive and the time it should have arrived.</p> <p>2. —Same—Special Damages—Notice to Carrier.</p> <p>In a .suit by a lumber dealer against a railroad company for damages resulting to plaintiff by reason of the increased price he had to pay to supply lumber of the kind contained in a delayed shipment to his customers, whereby he lost the retail profit which he would otherwise have made; the extra time and expense in making local purchases; and the loss of customers and profits on sales by reason of not being able to supply the demands for lumber, were all special damages and the carrier would not be liable for the same in the absence of knowledge at the time it received and contracted to transport the lumber that such damages were likely to result from delay in transportation.</p> <p>3. —Same—Insufficient Notice.</p> <p>The facts that the plaintiff was engaged in the lumber business, that lumber was the character of the merchandise shipped, and that similar shipments had been made over defendant’s road before, would not be sufficient to put defendant on notice of the conditions and circumstances which would render it liable for special damages resulting from delay in the transportation.</p>

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

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

<p>1.—Pleading—Action on Account.</p> <p>A petition merely alleging that “From Aug. 13, 1907, to March 18, 1908, and including different dates, plaintiff shipped, as per order of defendant, coal,—that the amount now due and past due by the defendant is $272.53,” was so radically defective that a judgment in favor of plaintiff presented fundamental error.</p> <p>8.—Same—Verified Account.</p> <p>The allegations of the petition were not aided by a verified account of goods sold, though attached to the petition, where such account was not made a part thereof nor referred to therein.</p> <p>3.—Evidence—Verified Account.</p> <p>The effect of a verified account as proof of plaintiff’s claim is neutralized where its justness is wholly denied by defendant under oath. The account then becomes inadmissible as evidence, and furnishes no proof of value or contract price.</p>

Tried below before Hon. W. E. Hunnicutt. The case, upon motion for rehearing, was reversed and remanded upon points not considered in this opinion, but only the opinion here rendered was designated to be officially reported.

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

<p>1. —Husband and Wife—Wife’s Separate Estate—Claim Against.</p> <p>In a suit against a husband and wife upon a promissory note executed by them and to establish the same as a claim against the wife’s separate estate, evidence reviewed and held to tend to show that the loan for which the note was executed was contracted by the wife or by her express authority for the benefit of her separate estate, and it was therefore error for the trial court to take this issue from the jury and to instruct a verdict thereon for the wife.</p> <p>2. —Same—Pleading and Proof—Variance.</p> <p>An allegation that a loan was made to the wife for the purpose of erecting a building upon her separate property is not supported by evidence that the larger portion of the loan was for the purpose of removing an encumbrance upon the property of the wife.</p>

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

When all the evidence introduced upon a trial showed that a certain machine, the subject of contract and controversy between the parties, was known as a No. 2 machine, a statement by… Held: the notes were properly admitted in evidence over an objection that there was a variance between the pleading and proof; and the evidence showing without dispute that the correct amount was $112.50, judgment was properly rendered accordingly. 3. —Promissory Note—Signature—Rubber Stamp.

<p>Unenforceable Contract—Breach.</p> <p>The doctrine that one who knowingly induces another to break his contract with a third person is liable to such third person for the .damages resulting, has no application to the breach of a contract which is not enforceable at law; as, for instance, a verbal contract to convey land.</p>

<p>1.—School Board—Powers—Vaccination of Children.</p> <p>The provisions of sec. 31, art. XVI, of the Constitution apply only to legislation which might be enacted prescribing the qualification of practitioners of medicine, and therefore can not be invoked against an order of a school board requiring the school children to be vaccinated.</p> <p>2. —Same—Constitution.</p> <p>An order of a school board excluding from the school all piifiils who should refuse to be vaccinated, merely prescribed a condition upon which the right of pupils to attend the school should depend; it did not compel vaccination, and therefore was not in violation of sec. 9, art. I, of the Constitution, providing that the “people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures and searches.”</p> <p>3. —Same—City Charter—Construction.</p> <p>The provisions of a city charter defining the powers of the city commissioners and of the board of school trustees concerning the enactment of rules and regulations for the promotion of health and the suppression of disease, considered, and held sufficiently comprehensive to delegate to the school trustees the authority to pass an order requiring the pupils to be vaccinated or to absent themselves from the school.</p> <p>4. —Same—Police Power.</p> <p>An order of a school board requiring the pupils to be vaccinated or to absent themselves from the school, considered, and held a mere exercise of police power for the protection of the health of the pupils and not in contravention of sec. 19, art. I, of the State Constitution nor of sec. 1 of the Fourteenth Amendment to the Constitution of the United States.</p>

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

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

<p>1. —Practice—Peremptory Instruction.</p> <p>To authorize a trial court to give a peremptory instruction the evidence must be such that ordinary minds can not differ in the conclusions to be drawn from it. In a suit against a railroad company for failure to promptly furnish cars for the shipment of cattle and for delay in the transportation of the cattle, evidence considered and held to raise issues of fact which should have been submitted to the jury.</p> <p>2. —Carrier—Contract to Furnish Cars—Evidence.</p> <p>Where the agent or officer of a railroad company promised to furnish cars for the shipment of cattle at a certain time “if it could possibly do so,” evidence considered and held to raise an issue for the jury to pass upon whether, in the light of all the circumstances, delay in furnishing the cars had been satisfactorily accounted for.</p> <p>3. —Practice—Defense—Evidence Without Pleading.</p> <p>A defense not pleaded can not avail a defendant although established by the evidence.</p> <p>4. —Same—Affirmance—Improper Evidence.</p> <p>When there was testimony, although inadmissible if objected to, of injury to cattle by delay in transportation, the judgment -of the trial court in favor of the carrier should not be affirmed on the ground alone that no formal proof on the proper measure of damages had been offered.</p>

<p>1. —Negligence—Refusal of Special Charge—Practice.</p> <p>In a suit for damages for personal injuries alleged to have been caused by defendant’s negligence, a special charge requested by defendant considered and held properly refused because it merely presented the negative of plaintiff’s case, which was sufficiently done in the main charge.</p> <p>2. —Charge—Undisputed Pact.</p> <p>When there is practically no conflict in the testimony concerning a fact it is not reversible error for the court to assume it as true in its charge.</p> <p>3. —Personal Injuries—Medical Expenses—Charge.</p> <p>When, in a suit for damages for personal injuries, the amount of expenses of plaintiff’s sickness is not limited in the petition, and the testimony of the witnesses varies as to the amount recoverable, it is not error for the court to fail to limit the recovery to the highest sum named by any witness; to do so would be to emphasize the testimony of such witness.</p> <p>4. —Same—Matter of Inducement—Harmless Error.</p> <p>The admission of testimony to the effect that plaintiff’s wife and children were with him on a, railroad train when he was injured, would not be reversible error when said testimony was but a statement of a part of the res gestae or setting of the situation at the time, and the verdict was not excessive.</p>

<p>Error from the District Court of Ward County. Tried below before Hon. S. J. Isaacks, Special Judge.</p>

<p>Appeal from District Court, Swisher County; R. C. Joiner, Special Judge.</p> <p>Boundary controversy between T. F. Nanny and M. B. Vaughn and others. From the judgment rendered, Nanny appeals.</p>

<p>Appeal from the District Court of Dallas County, Texas. Tried below before Hon. J. C. Roberts.</p>

<p>1.—Railroads—Fencing Switch Yard—Necessity—Question of Fact.</p> <p>The mere fact that an animal is killed by a railroad train within the switch limits of a station would not relieve the • railroad company from liability; whether or not public necessity or convenience required that the switch limits be left unfenced may be a question of fact for a jury to determine under all the circumstances.</p> <p>2. —Same.</p> <p>If the uses to which side tracks and depot grounds are put or if they are so seldom used that public necessity or convenience does not require that they be left unfenced, then for the killing of animals at such place the railroad company would be absolutely liable.</p> <p>3. —Same—Evidence.</p> <p>In a suit against a railroad company for the value of a colt killed by one of defendant’s trains within the switch limits of a flag station, evidence reviewed and held to raise a question of fact whether or not public necessity and convenience required that the main track and switches at said station be left unfenced, and sufficient to support a finding in effect that there was no necessity for leaving the tracks unfenced.</p>

<p>1.—Personal Injury—Railroad Employee—Jurisdiction of State Court—Pleading.</p> <p>When, in a suit in a State court by a railroad employe against the company for damages for personal injuries, the plaintiff’s petition does not disclose that the suit is based upon the federal statute relating to the liability of railroad companies to their employes, it must be held .that he is not seeking to recover for an injury received while engaged in interstate commerce, and the sufficiency of his petition must be tested by the State law.</p> <p>2. —Same—Evidence.</p> <p>A railroad company can not complain of being forced to submit to the jurisdiction of a State court in a suit by an employe for damages for personal injuries when there is no evidence that the train, in the operation of which the plaintiff was injured, nor any car in the same, was being used in interstate traffic.</p> <p>3. —Pleading—Knowledge of Pact.</p> <p>When a fact is peculiarly within the knowledge of the defendant, the plaintiff.is relieved of the necessity of using that degree of accuracy and certainty which is required when the fact is known to him.</p> <p>4. —Charge—Construction.</p> <p>A charge should be considered and construed as a whole and any laxity of expression in one part might be cured by a more accurate expression in another. Rule applied in suit for personal injuries.</p> <p>5. —Depositions—Return—Certificate of Postmaster.</p> <p>Under our present statute it is not necessary that the envelope in which depositions are returned into court by mail, should have endorsed thereon a certificate of the postmaster or of his deputy that he received the same from the hands of the officer before whom they ■' were taken.</p> <p>6. —Same—Motion to Quash—Misnomer.</p> <p>A motion by a defendant railroad company to quash the depositions of a witness for plaintiff on the ground that the words “of Texas” were omitted from the name of the defendant in the copy of the precept served on it, considered, and held properly overruled because the identity of the defendant was not thereby rendered uncertain and the defendant could not have been misled thereby.</p>

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

<p>1. —Execution Sale—Inadequacy of Consideration.</p> <p>Inadequacy of consideration alone is not sufficient, even on direct attack, to require or justify the vacating of a sale under execution; there must also be some irregularity that is calculated to prevent a sale at a fair price.</p> <p>2. —Same—Purchaser—Title.</p> <p>A purchaser at execution sale without notice of irregularities in the proceedings leading up to the sale, is protected in his title if the judgment under which the sale is made be valid and the execution and sheriff’s deed be regular; such purchaser is not bound to do more than to show a valid judgment, execution and sale.</p> <p>3. —Same—Irregularity.</p> <p>An irregularity in an execution sale to be sufficient to set the sale aside must be one of which an intending purchaser had notice or of which he was chargeable with notice and which was reasonably calculated to deter him from bidding. It will not be presumed that such a purchaser looked any further into the record than was necessary to satisfy himself that he would be protected in the title which he might acquire by purchase at the sale. Hence, it will not be presumed that a defect in the sheriff’s return upon the citation upon which judgment by default was rendered, deterred persons from bidding at the sale and caused or contributed to the inadequacy of price for which the property sold.</p> <p>4. —Corporation—Conversion of Stock.</p> <p>A corporation which refuses to make a transfer to the rightful owner of shanes of its stock and to issue a certificate for the same in lieu of the original certificate tendered for cancellation, may be sued as for conversion of the stock.</p> <p>5. —Appeal—Cross Assignment—Practice.</p> <p>Cross assignments of error attacking findings of fact by the trial court will not be considered on appeal when it does not appear that the appellee excepted to the findings of the trial court or to the judgment rendered thereon.</p>

<p>1. —Practice on Appeal—Assignment—Fundamental Error.</p> <p>Errors not properly assigned will not, in general, be considered on appeal. But the failure of the judgment to settle the matter in controversy, being fundamental, may he treated as ground for reversal though not assigned.</p> <p>2. —Judgment—Trespass to Try Title—Disputed Boundary.</p> <p>On appeal from a judgment for defendant in trespass to try title, the issue being as to the boundary between adjoining surveys owned by the parties respectively, it was not necessary that the verdict and judgment fix the location of the true boundary line; the judgment determined only that the land in defendant’s possession was within the boundaries of the survey to which he had title; this was all that was at issue and a general verdict and judgment for defendant determined it in his favor.</p> <p>3. —Same—Agreement as to Issue.</p> <p>The matter at issue is determined by the pleadings, not by agreement of the parties; and in tnespass to try title it was the superior right to the land sued for; if this depended on the boundary between the surveys they respectively owned, the issue raised was, not where was the true location of this line, nor need the judgment determine this; it was whether the land in defendant’s possession and sued for by plaintiff fell within the boundaries of the survey he owned and claimed or in that of defendant; this being settled by the verdict and judgment for defendant it was not material that they determine more than this as to the true location of the boundary line.</p>

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

<p>1. —Case Approved.</p> <p>The rulings in this ease on former appeal (Poteet v. Blossom Oil & Cotton Co., 115 S. W., 289) approved and followed.</p> <p>2. —Harmless Error—Issue not Submitted.</p> <p>The overruling of a special demurrer to allegations in regard to precautions with respect to dangerous machinery attractive to children was harmless, if erroneous, where the issue attempted to be raised by such allegations was not submitted to the jury.</p> <p>3. —Harmless Error—Charge—Assuming Fact.</p> <p>The absence of evidence to support the finding of a matter of fact left to the jury by the charge did not make the instruction ground for reversal where the charge did not authorize a recovery upon the finding of such fact alone, tout only upon a finding, in connection with it, of other facts sufficient in themselves to support a recovery.</p> <p>4. —Charge—Evidence Held to Support.</p> <p>Evidence considered and held sufficient to support a charge submitting the question whether plaintiff, a small child, was permitted by the employes of a cotton oil company to wander unattended and play about the machinery of its seed room.</p> <p>5. —Negligence—Dangerous Machinery—Care Due to Child.</p> <p>Under circumstances here considered a charge is held not erroneous in imposing upon the proprietor of a cotton oil mill the duty to watch over and guard against injury a small child permitted to be in its seed room and near to dangerous machinery by the employe in charge of such room, though such employe was the child’s father.</p> <p>6. —Charge—Bequest for Explanation by Jury.</p> <p>In an action for negligent injury to a small child, the jury, returning into court, asked explanation as to the application to plaintiff of the definition of ordinary care in the charge. The court answered by giving an additional instruction as to the care required of defendant. Held, that though not responsive to the question asked by the jury, this was not prejudicial to defendant, since the only proper reply to the question would have been that such definition of ordinary care would, not have been applicable to plaintiff on account of her tender years and lack of discretion.</p> <p>7. —Charge—Assuming Facts.</p> <p>An instruction which assumed that the seed room of an oil mill in which plaintiff, a small child, was injured by being caught in a seed conveyor, was a dangerous place, the evidence that it was so being uncontroverted, and that plaintiff’s father, who had invited or permitted her presence, and who was an employe of defendant and the only one there present or in charge of the room, was a servant for whose negligence in failing to exercise ordinary care for plaintiff’s protection the employer would be liable, was not erroneous, both such assumptions being warranted.</p> <p>8. —Injury to Child—Dangerous Machinery—Parent as Servant of Defendant —Case Stated.</p> <p>Plaintiff, a child four and a half years old, was taken by her mother to the seed room of a cotton oil company, carrying his dinner to the father who was there employed in feeding cotton seed into a conveyor, he being the only employe then in the room. While he was eating, the child by him, the wife took his place feeding seed into the conveyor. In so doing the pile of seed slid down about her, and at her call the husband ran to her assistance. The child followed him and was caught and mangled in the seed conveyor. The evidence is considered and held to support a recovery by the injured child against the company based on the negligence of the father as defendant’s servant.</p> <p>ON MOTION FOB REHEARING.</p> <p>9.—Same.</p> <p>The liability of defendant for negligence of its servant is not altered by the fact that the servant is at the same time the parent of the injured party. The presence of the child unattended about dangerous machinery imposed an obligation on defendants’ servants having knowledge of its peril, even though it were a trespasser and brought there contrary to defendants’ commands. This duty of the employe as servant did not arise so long as he was exercising care as parent. When, as parent, he ceased to look after the child, his knowledge that it was uncared for and duty to protect it were those of a servant, for default in which the master was liable.</p>

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

<p>1. —Railways—Master and Servant—Contract—Notice of Claim for Damages.</p> <p>The amendment to article 3379, Revised Statutes, by Act of April 18, 1907, Laws Thirtieth Leg., p. 241, invalidating contracts by railway employes requiring notice of claim for damages, did not affect a contract made by the employe before such amendment took effect. The Act would be unconstitutional as applied to existing obligations,</p> <p>2. —Same—Contracts Limiting Liability,</p> <p>The Act of June IS, 1897, Revised Statutes, article 3379, before its amendment by the Act of April 18, 1907, prohibited contracts by an employe limiting the liability of a railway to its employes, and a contract requiring notice to be given by the employe of his claim for damages within ninety days from receiving an injury was a limitation of liability forbidden by such statute.</p> <p>ON MOTION FOB REHEARING.</p> <p>3. —Same—Constitutional Law.</p> <p>The Act of June 18, 1907, Revised Statutes, article 3379, construed as invalidating contracts by a railway employe to give notice of his claim for damages by personal injury, is not unconstitutional as depriving the employer of liberty of contract or of property without due process of law (Canst., art. I, sec. 19).</p>

<p>Appeal from the County Court of Jefferson County. Tried below before Hon. R. W. Wilson. ,</p>

<p>1. —Practice—Rule 31—Right to Open and Conclude.</p> <p>When a defendant in the trial of a case, for the purpose of securing the right to open and conclude in the introduction of the evidence and the argument, files an admission in the language of rule 31 of Practice for the District and County Courts, the admission must be construed to mean that the defendant admits every fact alleged in the petition which it is necessary for the plaintiff to establish in the first instance to enable him to recover, but it can not be held to admit allegations in a supplemental petition which merely deny matter alleged in the answer, the burden of proving which is .on the defendant.</p> <p>2. —Same—Reversible Error.</p> <p>The right to open and conclude in the conduct of a trial is a valuable one and its unlawful denial will be cause for reversal.</p>

<p>1. —Broker—Commissions—Exchange of Property.</p> <p>An exchange of properties for which a fixed and definite value has been agreed upon by the parties and the difference in values paid in cash is, in contemplation of law, a sale which would entitle a land agent who consummates the transaction to his commission.</p> <p>2. —Charge—Assumption of Fact.</p> <p>When the evidence is conflicting upon an issue, a charge which assumes as true or as established the contention of one of the parties, is erroneous.</p> <p>3. —Same.</p> <p>When the right of a plaintiff to recover depends upon the finding of several issues in his favor, it is error for the court to so frame its charge as to authorize a verdict for him upon the finding of one issue in his favor.</p> <p>4. —Practice—Introduction of Evidence.</p> <p>During the trial defendant offered in evidence a letter written by the plaintiff but stated that the letter would not be read to the jury at that time but would be read later; the jury was not informed of its contents until defendant’s counsel began to read it in his argument to the jury after the introduction of evidence was closed and counsel for plaintiff had made his opening argument. Held, an objection to the reading of the letter at that time was properly sustained.</p> <p>5. —Same—Ruling upon Evidence.</p> <p>An error in excluding evidence is cured by a subsequent offer to permit same to be introduced.</p>

<p>1. —land Certificate—Transfer—Recitals—Evidence.</p> <p>Recitals in a written transfer of a land certificate to the effect that the parties transferring and selling the certificate were the sole heirs of the original grantor, are not admissible in evidence against the other heirs of said grantee for the purpose of showing an open, notorious and adverse claim by said vendors of the certificate and the land on which the same was located, in the absence of evidence tending to show, that the other heirs knew of such adverse claim.</p> <p>2. —Same—Self-Serving Declarations.</p> <p>The recital in a written transfer of a land certificate that the vendors were the sole heirs of the original grantee, would tend strongly to show that the vendee in the transfer claimed title to the certificate and the land located by virtue thereof only through those written instruments and not by or under paroi sales and delivery by and from the other heirs of the original grantee. As a rule self-serving declarations are not admissible in proof of title in the declarant.</p> <p>3. —Trespass to Try Title—Holder of- legal Title—Charge.</p> <p>The grant of a land certificate to the heirs of a party vested the legal title to said certificate and the land located by virtue thereof, in said heirs; hence in a suit of trespass to try title by such heirs to land claimed by virtue of such a certificate, the heirs would be entitled to recover in the absence of evidence that they had parted with their legal title. Evidence considered and held to justify a peremptory instruction in favor of heirs to whom a certificate had been granted.</p> <p>4. —Same—Costs.</p> <p>All the costs of the suit are properly adjudged against the defendant in trespass to try title though the plaintiff recover only a part of the land sued for.</p> <p>5. —Same—Locative Contract—Joint Owner—Judgment.</p> <p>A contract for the location, survey, etc., of a land certificate expressly vested in the contractor a one-half interest in the certificate as soon as the same should be issued by the Land Office; the certificate was issued and the contractor performed the obligations imposed on him by the contract. Held, said contract vested in the contractor and those holding under him such an interest in the land as would prevent them being classed as mere trespassers upon the land, and hence the rule that the owner of an undivided interest in a tract of land would be entitled to recover in trespass to try title the whole tract as against a mere trespasser, would not apply.</p> <p>6. —Stale Demand.</p> <p>The doctrine of stale demand can not bte applied to one who in assertion of his right to land continuously exercises acts of ownership over the same, such as using it and leasing it.</p> <p>7. —Appeal—Practice.</p> <p>A proposition which is not germane to any cross assignment in appellee’s brief and which is not supported by a proper statement of the evidence, will not be considered on appeal.</p>

<p>Error from the District Court of Jones County. Tried below before Hon. Thos. L. Blanton.</p>

<p>Appeal from the County Court of Baylor County. Tried below before Hon. Hat. G. Mitchell.</p>

<p>1. —Growing Grass—Market Value—Evidence.</p> <p>' The testimony of a witness that growing grass had a market value at the time it was destroyed by fire should not be excluded because^the witness subsequently stated that his estimate of the market value was based upon the fact that such value could be realized by pasturing the grass.</p> <p>2. —Railroads—Defective Spark Arresters—Evidence.</p> <p>Where defendant’s witnesses had testified that all of defendant’s engines were equipped with the latest and most improved fire arresters, it was not error to permit a witness for plaintiff to testify in rebuttal as to the defective condition of the fire apparatus on a certain engine at a time subsequent to the fire in question, even though it was not shown that said engine had set out the fire in question.</p> <p>8.—Same—Causing Fire—Insufficient Evidence.</p> <p>When the evidence simply shows that a fire originated on a railroad right of way and there is nothing to show whether the same was caused by the defendant’s negligence or was set out by some one else, the evidence is insufficient to sustain a verdict against the railroad.</p>

<p>1.—Agency—Testimony—Conclusion of Witness—Hearsay.</p> <p>The issue being whether or not the vendor of land accepted as part of the consideration therefor a worthless promissory note of a third party after investigating the value of the same, and so acted upon his own judgment, or whether he was induced to accept tlie note by the representations of the payee therein and the owner thereof, he being the purchaser of the land, that the note was worth its face value, proffered testimony as to the statements of the agents who conducted the transaction, considered, and held subject to the objections that said statements were hearsay and conclusions of the agents.</p> <p>2.—Appeal—Measure of Damage—Agreement.</p> <p>When the record contains an agreement that the charge of the court gave the proper measure of damage in the case, appellant can not complain on appeal of the charge of thie court in that respect.</p>

<p>1. —Innocent Purchaser—Valuable Consideration—Attorney in Fact—Evidence.</p> <p>Expenses incurred and time spent by an attorney in investigating the title to a tract of land in contemplation of securing from the supposed owner a power of attorney coupled with an interest • in the land, can not be regarded as part of the consideration paid for the conveyance subsequently secured so as to constitute the attorney a purchaser for value. Such claim could be based only upon expenses incurred and services rendered after the power was secured and in performance of the duties imposed by the contract.</p> <p>2. —Same.</p> <p>An attorney who incurs expenses and performs services in consideration of an interest in land, after notice that his client or principal had no title thereto, can not claim to be an innocent purchaser of the same.</p> <p>3. —Innocent Purchaser—Inadequate Consideration.</p> <p>A grossly inadequate consideration paid is inconsistent with a plea of innocent purchaser.</p> <p>4. —Same—Index to Deed Record—Notice.</p> <p>One who sees in the index of the deed records of a county, evidence of the existence and record of a deed affecting the title to land he contemplates purchasing, can not by failing to examine and read the record claim to have no knowledge or notice of the facts of which 'the recitals in said deed would have acquainted him.</p> <p>5. —Attorney in Fact—Notice of Adverse Title.</p> <p>In a suit by an attorney in fact for an interest in land acquired by and through a power of attorney, evidence considered and held insufficient to support a claim of being an innocent purchaser of such land for a valuable consideration.</p>

<p>1. —Conversion—Fraudulent Contract.</p> <p>In an action for conversion of corporate stock belonging to plaintiff and alleged to have been transferred to defendant for the purpose of making sales to third parties, an answer setting up that such transfer was in pursuance of a scheme for defrauding third parties in the contemplated sales showed facts precluding plaintiff from recovery, and demurrer thereto was improperly sustained.</p> <p>2. —Same—Sale—Agency—Compensation.</p> <p>If, without intent to defraud the purchasers, plaintiff transferred corporate stock to defendant for the purpose of making sales thereof through such assignee, the latter would be entitled to recover the value of his services in making such sales, in the absence of any agreement in regard to compensation; but otherwise if there was an agreement that his services were to he rendered gratuitously.</p> <p>3. —Same.</p> <p>If the owner assigned corporate stock to defendant to sell for him to others, in pursuance of a scheme to defraud them of which defendant was ignorant and acted innocently, he could recover the reasonable value of his services in making such sales.</p> <p>4.—Practice—Argument—Right to Open, and Conclude.</p> <p>Where defendant does not admit plaintiff’s cause of action so as to dispense with proof thereof, he is not entitled to open and conclude the argu-o ment, though on the evidence, the only issue submitted to the jury was as° to defendant’s right to recover on his cross action, upon which he had the burden of proof.</p> <p>ON MOTION FOB REHEARING.</p> <p>5. —Witness—Impeachment—Conviction of Crime.</p> <p>A witness may be impeached by the record of his conviction and fine in the United States Court for using the mails for the purpose of fraud, that being an offense punishable, in the alternative, by imprisonment in the penitentiary, and of the grade of felony as defined by the laws of Texas.</p> <p>6. —Same.</p> <p>The rule forbidding impeachment of a witness by proof of specific acts, instead of general reputation, is based on the necessity of preventing too great complication of the issues; it is inapplicable to the question of impeachment by record of a conviction for felony, since evidence to prove that the witness was innocent, though convicted, could not be received.</p>

<p>Error from the County Court of Coleman County. Tried below before Hon. T. J. White.</p>

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

<p>1. —Negligence—Pleading.</p> <p>Where an engine or machinery was in the exclusive control of defendant, the condition and management thereof being peculiarly within its knowledge, it is not necessary that plaintiff’s pleading specify the particular defects or mismanagement which caused the injury complained of. In such case (locomotive engine alleged to have set out fire) a general allegation of negligence is sufficient.</p> <p>2. —Railway—Fire—Sufficiency of Proof.</p> <p>In order to make a prima facie case of negligence by a railway in permitting the escape of fire, there must be affirmative proof that the fire was communicated from its engine, but this may be made by circumstances, such as the passage of an engine emitting many sparks shortly before the appearance of fire in plaintiff’s barn 113 feet from the track, and the absence of any other probable cause for such fire. If this is found sufficient to establish the fact of communication of fire, it is also sufficient to make a prima facie case of negligence in its communication, calling on defendant for proof of due care in the equipment and. handling of the engine.</p> <p>3. —Same—Requested Charge.</p> <p>Instructions held sufficient in requiring affirmative proof that fire was communicated from defendant’s engine, to justify the refusal of a requested charge on that subject.</p> <p>4. —Charge—Rebutting Prima Facie Case,</p> <p>A charge requiring a verdict for plaintiff in an action for damages by fire from a railway locomotive if the prima facie case of its communication and inferentially of negligence was established and was not rebutted by defendant’s proof, was not an instruption on the weight of evidence.</p> <p>5. —Evidence—Witnesses Under Rule.</p> <p>Where witnesses had been placed under the rule it was within the discretion of the court to permit the examination of one who had been present during their examination, his presence being unknown at the time to counsel offering him, who had him summoned after the trial began.</p> <p>6. —Fire—Negligence—Conflict of Evidence.</p> <p>Where plaintiff proved the emission of sparks from defendant’s engine unusual in quantity and size, proof by defendant to show that it was properly equipped and handled made a case of conflicting testimony on which the question of negligence was one for the jury to determine.</p> <p>7.—Evidence—Contents of Books.</p> <p>A bookkeeper could not be permitted to testify as to the contents of entries in books made by his assistant, relating to transactions of which he had no personal knowledge. The books were the best evidence.</p>

<p>Appeal from the County Court of McCullough County. Tried below before Hon. Harvey Walker.</p>

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

<p>1. —Certiorari—Requisites of Petition.</p> <p>A petition for certiorari to the Justice Court must state all the evidence introduced on the trial, or show that a material and vital error occurred in the proceedings, or that the applicant has not been able to avail himself of a legitimate prosecution or defense through no fault of his own, and one or all of these causes must be set forth, not by general allegations, but with sufficient detail to show a prima facie case entitling the applicant to another hearing.</p> <p>2. —Same—Insufficient Petition.</p> <p>A suit in a Justice Court was based upon a judgment rendered in a Justice Court of another State, and judgment was rendered against the defendant, who sought to remove the oasis by certiorari to the County Court; there was no allegation in the application for certiorari that defendant did. not justly' owe the debt sued on evidenced by the foreign judgment; nor that there was no such court as the court which rendered the judgment; nor that said court did not have jurisdiction of defendant’s person and of the subject-matter; nor that the applicant made any objection to the judgment of the foreign court when it was offered in evidence in the Justice Court. Held, the County Court should have sustained a motion to dismiss the application for Want of sufficient cause appearing • therein, and have awarded a procedendo.</p>

<p>Appeal from the County Court of Fayette County. Tried below before Hon. Geo. Willrich.</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 Victoria County. Tried below before Hon. James C. Wilson.</p>

<p>1. —Misconduct of Jury—New Trial.</p> <p>No abuse of discretion by trial court appears in its refusal of a new trial for alleged misconduct of the jury in determining by lot the amount of damages awarded, the evidence supporting a conclusion that it was not so reached.</p> <p>2. —Damages—Personal Injuries.</p> <p>A verdict for $13,000 damages for personal injuries to a woman in wreck of the train on which she was a passenger by collision, held unwarranted in amount by the evidence which is here considered, but not so excessive as to require reversal in the absence of matters which might have improperly influenced such.finding; but argument of plaintiff’s counsel is held to suggest such improper influence affecting the amount of recovery.</p> <p>3. —Same—Argument of Counsel.</p> <p>Argument of plaintiff’s counsel in his closing speech, urging a large verdict because of the wealth of defendant and poverty of plaintiff, held improper because not based on evidence and not a matter to be considered in fixing damages for a personal injury; the trial court having declined to interfere when objection was made, such argument, followed by a verdict unwarranted by the evidence, is held ground for reversal.</p> <p>4. —Damages—Practice on Appeal—Reduction of Judgment.</p> <p>Reversing a recovery of damages in the sum of $13,000 for personal injuries, the appellate court permit judgment to stand on remittitur by plaintiff of $5,000.</p>

<p>Pleading—Proof—Substance of Issue.</p> <p>In a suit against a street railway for personal injuries caused by tripping over a spike in a cross tie, plaintiff alleged that the spike was partially driven in and left protruding above a tie at or near the side walk line of intersecting streets, and constituted a dangerous obstruction in a street where many people come and go; the plaintiff testified that the spike in question was in the line of the sidewalk crossing of the street; other witnesses placed it from fifteen to forty feet away from the crossing. Held, in either case the substance of the issue was proved, and it was reversible error for the court to charge the jury that the plaintiff was not entitled to recover if they believed from the evidence that he was walking upon defendant’s track some fifteen or thirty or forty feet from the sidewalk crossing.</p>

<p>1. —Master and Servant—Fatal Injuries by Servant—Liability of Master.</p> <p>In order to render a master liable for fatal personal injuries inflicted by his servant, the injuries must have been inflicted by his servant in the line of his duty and in the pursuance of his master’s business. When the servant turns aside, for horvever short a time, from the prosecution of the master’s work and engages in the doing of an act not in furtherance of the master’s business but to accomplish some purpose of his own, whether malicious or otherwise, the master is not responsible for such action.</p> <p>2. —Same.</p> <p>Evidence considered, and held to warrant the trial court in instructing a verdict for the defendant in a suit against a railroad company for damages for fatal injuries inflicted by its depot watchman upon a third party in a difficulty growing out of the performance of his duties by the watchman, the difficulty occurring at a place not on defendant’s premises and at a time when the Avatchman was not in the discharge of h's duties as such.</p>

<p>1. —Husband and Wife—Divorce—Community Creditor—Remedy.</p> <p>After the dissolution of the marital partnership by divorce, the former husband no longer represents the former wife or the community estate, and a creditor of the community can subject the wife’s interest in the community estate as it existed at the time of the divorce only by making her a party to the suit. And if the community estate be adjudged to the wife by the divorce decree, the interest of the former husband therein can only be reached by a community creditor by making the wife a party to a proceeding for that purpose. A suit by such creditor instituted before the divorce is granted would not be affected, however, by a subsequent decree.</p> <p>2. —Divorce—Proceeding In Rem—Notice.</p> <p>A divorce proceeding being a proceeding in rem affects all persons with notice of the pendency of the same and of the terms of the decree rendered.</p> <p>3. —Injunction—Execution Sale—No Adequate Remedy.</p> <p>An injunction is properly granted to stay an execution sale of an indeterminate interest of an alleged joint owner in a stock of cattle when it appeared that the result of such sale would be to embarrass the owners in the conduct of the business and the sale of the cattle, and that the owners had no other adequate remedy to prevent such injurious consequences.</p> <p>4. —Appeal—Practice—Cross Assignment.</p> <p>In the absence of a cross assignment of error complaining of a ruling of the trial court, such ruling will not be revised on appeal upon a mere suggestion or proposition in appellee’s brief.</p>

<p>Warehouse Receipt—Cotton Compress—Liability to Assignee.</p> <p>A cotton compress company issued a receipt for a certain number of bales of cotton for account of a certain party, wherein it was stipulated “this receipt must be returned on delivery of the cotton and is non-negotiable;" the owner of the cotton assigned the receipt and the assignee demanded the cotton of the compress company, but the company refused to comply with the demand or account for the value of the cotton on the ground that, having no notice of the assignment of the receipt, it had delivered the cotton to a third party on the order of the owner, without surrender of the receipt. Held, the compress company was liable to the assignee of the receipt for the value of the cotton. Sanger v. Travis County Farmers’ Alliance, 37 Texas Civ. App., 321, distinguished.</p>

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

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

<p>Error from the District Court of Shelby County. Tried below before Hon. James I. Perkins'.</p>

<p>1. —Contract—Settlement.</p> <p>The sole beneficiary of a contract has a right to make a settlement with the promissor, though the terms are other than those originally agreed on and the settlement is without the consent of a third party who has advanced the consideration for the benefit of the promisee.</p> <p>2. —Same—Case Stated.</p> <p>Husband and wife conveyed homestead property to merchants on their agreement to buy in at a bankrupt sale a stock of goods belonging to the son of the grantors, place him in control, and convey the stock to him when he should repay his indebtedness to them. A controversy arising between the merchants and the son about the performance by them respectively of this undertaking was settled by them on terms satisfactory to the son, but not involving the reconveyance to him of the stock of goods or his continuance of the business. Held, that the promise of the merchants was solely for the benefit of the son; that he could agree with them on the terms of settlement without consent of the parents; and that the latter could not recover back the land conveyed because the grantees had not complied with the terms of the contract' for which their conveyance formed the consideration.</p> <p>3. —Contract—Setting Aside—Return of Consideration.</p> <p>A husband and wife conveyed homestead property as consideration for a contract of the grantee with their son; a settlement of the grantee’s undertaking was made by them and the son, in pursuance of which the father re-received a conveyance of land which became thereby community property of himself and wife. The widow and heirs of the father, then dead, sued to recover back the property originally conveyed, repudiating the settlement. Held, that they could not maintain such action without tendering return of the property acquired by them in the settlement.</p>

<p>1. —Agency—Sale—Broker Purchasing for Himself.</p> <p>A broker being agent for the seller, can not become himself the purchaser, and if the contract be executory, the seller, on discovering that the broker was secretly the actual purchaser or interested in the purchase, may disaffirm and refuse to carry out the contract, though no injury was done him in the transaction.</p> <p>2. —Same—Ratification.</p> <p>The sale by a broker to himself is valid if made with the knowledge and approval of the principal or if ratified by the principal performing or retaining the proceeds of the sale after knowledge of the broker’s interest in the purchase.</p> <p>3. —Same—Refusal to Complete Sale.</p> <p>Where there was no performance, the seller having refused to carry out the contract because of a controversy as to the quality-of the goods tendered by him, he was not, on afterwards discovering that his broker was interested in the purchase, precluded from defending on that ground an action for damages for his failure to comply by the fact that he had previously refused compliance on other grounds, and it was immaterial whether such other grounds justified his refusal to comply.</p> <p>4. —Same—Broker’s Commissions.</p> <p>A broker who, without the knowledge of his principal, became interested as a purchaser in the sale made by him of the principal’s goods, was not entitled to his commissions on such sale.</p> <p>5. —Case Stated.</p> <p>A broker, who was also a merchant, sold goods of his principal, on "his own account, to purchasers to whom he directed delivery of the goods by his principal as on sale by them through him upon commission. A disagreement arising between the principal and the purchaser as to the quality of goods tendered, the former terminated the contract on the ground of the latter’s refusal to receive, and the buyers transferred to the broker their claim for damages by nonperformance. The broker then sued the seller for damages, alleging his own purchase, his sale to the second buyer on different terms, the refusal to deliver, the transfer of claim from such buyer to him, and as damages the enhanced price at which he was compelled to purchase other goods to fill the contract. Held, that he had no cause of action either for commissions as broker or damages as purchaser, there being no knowledge by his principal of his interest in the sale or other fact from which ratification could be inferred; that the purchaser, having no contract with the principal, but buying from the broker as from a merchant, had no action for damages against the defendant and could transfer none by his assignment.</p>

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

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

<p>Appeal from the District Court of Nueces County. Tried below before tian. W. B. Hopkins.</p>

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

<p>Appeal from the County Court of Anderson County. Tried below before Hon. O. C. Funderburk.</p>

<p>- Appeal from District Court of Tarrant County. Tried below before Hon. B. H. Buck.</p>

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

<p>1. —Note—Assignment—Collateral—Bona Fide Holder.</p> <p>An assignee of a promissory note taking transfer of it as collateral security, before its maturity, for indebtedness existing and to accrue to it from the payee, and without notice of defenses, is entitled to protection as a bona fide holder for value.</p> <p>2. —Same—Foreign Corporation. .</p> <p>Though a npte was given to a foreign corporation for business done by it in Texas without permit to do business in the State, the assignee of such note for a valuable consideration, acquiring it before maturity and without notice of these facts, could maintain suit thereon in Texas. (Ruled by Supreme ( curt on certified question, 103 Texas, 266).</p>

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

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

<p>Appeal from District Court, Jones County.</p> <p>Action by Jones & Nixon against the First National Bank of Hamlin and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Error from the District Court of Eastland County. Tried below before Hon. C. C. Higgins, Judge, presiding on exchange.</p>

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

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

<p>Divorce—Partition, of Property—Presumption—Statute.</p> <p>Under the provisions of article 2969, Say les’ Statutes, all effects which the husband and wife possess at the time the marriage may be dissolved by decree of divorce shall be regarded as community property, and the burden of proving the separate character of such property is upon him or her who asserts it. If separate property has undergone changes and mutations it is the duty of the owner to trace these changes and mutations and clearly identify his or her property. In the absence of such proof the property will all be regarded and treated as community property.</p>

<p>1. —Master and Servant—Contributory Negligence—Disregarding Rule.</p> <p>If a role or regulation prescribed or instruction given by a master to guide his servant in the performance of his duties is violated under circumstances which would not have justified or excused an ordinarily prudent person in doing so, then such act of disobedience is negligence as matter of law, and the court should so instruct the jury.</p> <p>2. —Same—Case Stated.</p> <p>An employe sued a brick company for damages for personal injuries caused by the falling of a trestle under the weight of loaded tram cars which the plaintiff followed out upon the trestle; the testimony was conflicting as to whether or not the company through its ■ superintendent had warned the plaintiff not to follow the cars upon the trestle; there was no evidence of any necessity or emergency which would justify or excuse the plaintiff in violating the warning; the court submitted to the jury as a question for them to determine whether "or not the plaintiff was guilty of negligence in violating the warning or order, if any was given. Held, reversible error. The violation of the warning or order would be contributory negligence as matter of law.</p> <p>3. —Charge—Duty of Master.</p> <p>A charge which in effect instructs the jury that it was the duty of a master to use ordinary care to furnish his servant with a reasonably safe place to work and a failure to use such care would be negligence, is not subject to the objection that it is upon the weight of the evidence.</p> <p>4. —Same—Quantum of Proof.</p> <p>A charge which requires an issue to be established to the satisfaction of the jury requires too great a quantum of proof in a civil case.</p>

<p>1. —Master and Servant—Station Platform—Negligence—Evidence.</p> <p>In a suit by a brakeman against a railroad company for damages for personal injuries received in the Indian Territory caused by the sloughing or crumbling of the edge of a station platform made of cinders, whereby plaintiff was thrown under a moving train and injured, evidence reviewed and held to raise an issue of fact whether or not defendant was guilty of negligence in the construction and maintenance of the platform, and the trial court therefore properly refused a peremptory instruction to return a verdict for the defendant.</p> <p>2. —Negligence—Evidence—Common Knowledge.</p> <p>No proof is required to be made of those things which every person is presumed to know, or of a fact necessarily resulting from facts proven. It is a matter of common knowledge' that requires no proof, that a station platform made of cinders, elevated six inches above the general level, will crumble at the edges unless held by a retaining wall or plank, and a court may submit the question to the jury whether or not the construction and maintenance of such a platform without a retaining wall was negligence, although there was no evidence upon the subject.</p> <p>3. —Special Charge—Omission of Issues.</p> <p>A requested charge which makes the case hinge upon one issue to the exclusion of another of equal importance, is properly refused.</p> <p>4. —Assumed Risk—Question of Fact.</p> <p>Whether or not a servant assumes the risk of injury in the performance of his duties when he performs such duties in the usual and customary and most effective way, and fails to adopt a perfectly safe way, is a question of fact for the jury.</p> <p>5. —Depot Platform—Maintenance—Absolute Duty.</p> <p>The duty of a railroad company to construct and maintain its depot platform in a reasonably safe condition, is absolute and non-delegable; therefore any negligence on the part of its employes in that respect would be imputed to the company.</p> <p>6. —Indian Territory—Common law.</p> <p>The Act of Congress of May 2, 1890, adopting chapter 20 of Mansfield’s Digest of the laws of Arkansas for the Indian Territory, simply adopted the common law; and in actions arising in said Territory the construction placed thereon by the Supreme Court of the United States, must be followed.</p> <p>7. —Employer’s liability Act.</p> <p>Under the Act of Congress known as the Employer’s Liability Act, a railroad company operating a railroad in the Indian Territory would be liable for the negligence of its section hands in the construction and maintenance of a depot platform in said Territory whereby a brakeman on one of its trains was injured.</p>

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

<p>1.—Personal Injuries—Riding in Freight Car—Rough Handling—Pleading.</p> <p>In a suit against a railroad company for damages for personal injuries received by plaintiff while riding in a freight car in charge of his live stock and household goods, and alleged to have been caused by unusual and unnecessary jerking and jarring the car in which plaintiff was riding, petition considered and held not subject to general demurrer.</p> <p>2.—Same—Switching Cars—Negligence.</p> <p>In switching freight cars, some jerking and jarring of the cars is necessary and unavoidable; it is therefore only unnecessary or unusual jerking and jarring of the cars and which could be avoided by the exercise of ordinary care, that constitutes actionable negligence.</p>

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

<p>Appeal from the District Court of Leon County. Tried below before Hon. S. W. Dean.</p>

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

<p>1. —Trial—Submission of Issues.</p> <p>An instruction to the jury must be applicable to the case made by the evidence and no charge should be given upon an issue where there is no evidence to sustain it.</p> <p>2. —Same—Breach of Contract—Case Stated.</p> <p>In an action for damages for breach of contract to furnish a certain number of railroad ties made of long leaf pine, where the defendant admitted that a large part of the ties delivered were made of short leaf pine, and failed to reply to a letter from the plaintiff complaining of that fact and notifying him of the reduced price at which the rejected ties could be sold and stating that unless the defendant answered in a reasonable time objecting to the sale of said ties at said price his silence would be taken as an assent that plaintiff might so dispose of them, and, after the lapse of a reasonable time the plaintiff sold them at said price it was error for the court to instruct the jury to return a verdict for the defendant if they found that said sale was not a reasonable or just one, there being no evidence raising such issue.</p> <p>3. —Evidence—Written Instrument—Province of Court.</p> <p>It is the province of the court and not of the jury to judge of the legal effect of written instruments, including letters, offered in evidence.</p>

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

<p>Appeal from the District Court of Aransas County. Tried below before Hon. E. A. Stevens.</p>

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

<p>1. —Officer—liability for Official Act.</p> <p>The superintendent of the insane asylum of the State, in taking charge of valuables found on the person of a patient committed to his care, acts in a ministerial capacity and is liable personally for wrongful disposition thereof.</p> <p>2. —Insane Asylum—Regulations.</p> <p>The board of managers of the State Insane Asylum, in making laws and regulations for its government by authority of article 94, Revised Statutes, have no power to adopt such as are inconsistent with the Constitution and laws of the State; and a regulation which authorized the superintendent to take charge of money found on the person of one committed to his charge and deliver it to another claiming it adversely to such insane person would be invalid and afford no protection to the officer, if such money was in fact the property of the one from whom it was so taken.</p> <p>3.—Same.</p> <p>A regulation of the State insane asylum authorizing the superintendent to take charge of valuables found on the person of a patient and to “turn same over to the guardian, relative or friend interested in the patient and who is looking after his welfare” did not authorize him to deliver money • so found to a sister of the patient on her claim that it was her own property, stolen from her by him.</p>

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

<p>1.—Huisance—Injunction—Storage of Combustibles.</p> <p>Evidence considered and held not to warrant an injunction against the erection of storage tanks for kerosene and gasoline near to the residence premises of plaintiffs, except so far as done in violation of city ordinances.</p> <p>2. —Same—City Ordinance.</p> <p>The erection of storage tanks for kerosene oil and. gasoline within city limits in quantities prohibited by a city ordinance constituted a nuisance, and could be prevented by injunction at suit of adjacent property owners.</p> <p>3. —Same—Control of City Authorities.</p> <p>A city ordinance having prohibited the storage of kerosene oil and gasoline within its limits in excess of a specified quantity, except “in a fire-proof magazine, isolated and located in some place which the city council may approve,” an injunction obtained by adjoining property owners, against the erection of storage tanks for such articles by defendant upon his premises within the city, should, on his application, have been so modified as to permit storage of the quantity not prohibited by the ordinance, and the injunction should be dissolved on the defendant procuring the approval by the city council of the location so selected for storage.</p> <p>4. —Case Followed.</p> <p>The rulings on the subject of injunction of an industrial enterprise as a nuisance in Gose v. Coryell, 59 Texas Civ. App., approved and followed.</p>

<p>Appeal from the District Court of Travis County. Tried below before Hon. Chas. A. Wilcox.</p>

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

<p>1.—Death by Negligence—Transitory Action.</p> <p>A statute creating a cause of action for damages sustained by the relatives or next of kin of one whose death was caused by the negligence of another, is not penal, and the cause of action is transitory and may therefore be enforced in any State or country whose public policy is not opposed to the recognition and enforcement thereof.</p> <p>2. —Same—Injury in other State—Procedure.</p> <p>When the courts of this State take jurisdiction of a cause of action by the next of kin for personal injuries resulting in death, where the injuries were inflicted in another State the statute of the State creating the right of action and not our statute will be looked to and enforced as a matter of comity due by one State to another.</p> <p>3. —Same.</p> <p>The courts of one State will take jurisdiction of an action by the next of kin for damages for personal injuries resulting in death although the injuries were inflicted and the death occurred in another State, provided there exist in both States statutes of substantially the same import and character giving a cause of action for such injuries.</p> <p>4. —Same.</p> <p>The laws of Louisiana and Texas giving to survivors a right of action in cases of personal injuries resulting in death, compared and held not so essentially different as would warrant either State in withholding that comity due from one State to another, and therefore the widow and children of a railroad engineer who was wrongfully injured and killed in Louisiana while in the discharge of his duties, could maintain an action therefor in this State.</p> <p>5. —Power of Legislature—Common Carriers—Exemption from Liability.</p> <p>The fact that an Act of the Legislature of the State of Louisiana incorporating a railroad company contained a provision exempting it from liability for personal injuries resulting in death, offers no barrier to the courts of this State entertaining jurisdiction of such an action. The validity of such an exemption questioned.</p> <p>6. —Comity—Remedy—Power of Courts to Apply.</p> <p>The fellow servant doctrine affects the remedy rather than the substantive right, and the fact that it is in force in personal injury cases arising under the laws of a sister State, affords no reason why the courts of this State should not take jurisdiction of such cases and apply the doctrine.</p> <p>7. —Pleading—Petition and Answer Construed Together.</p> <p>The omission of a necessary averment in plaintiff’s petition may be supplied by the averments of defendant’s answer. This rule applied in an action for damages for personal injuries resulting in death inflicted in another State, wherein the petition failed to allege that the laws of such State gave a right of action to any one in such case, but the answer of the defendant supplied the omission by pleading the law upon which plaintiff’s case was grounded.</p> <p>8. —Railroad Charter—Constitutional Rights.</p> <p>A provision in a railroad charter exempting the company from liability for injuries resulting in death to its train operatives, is not such a contract between the State and the company as would fall within the purview of article x, section 1, of the Constitution of the United States, inhibiting the impairment of the obligation of contracts. Hence a subsequent Act of the Legislature making the company liable for such injuries would not be unconstitutional.</p> <p>9. —Railroads—Joint Operation—Personal Injuries—Joint Liability.</p> <p>Evidence reviewed as to the joint operation of their respective roads and the conduct of their business by two railroad companies and held sufficient to make them jointly and severally liable for injuries inflicted by either upon an employe of both while engaged in their common service, whether they were partners or not.</p> <p>10. —Same—Cattle on Right of Way—Negligence.</p> <p>Evidence as to negligence on the part of a railroad company in permitting cattle to pass through an open gate onto its right of way, whereby a locomotive was derailed and an engineer killed, held sufficient to support a judgment against the company.</p>

<p>Appeal from the Fifty-fifth Judicial District, Harris County. Tried below before Hon. W. P. Hamblen.</p>

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