Volume 61 — Texas Civil Appeals Reports

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

<p>1. — Forcible Entry and Detainer — Dispossession under legal Process.</p> <p>A writ directing an officer to place a party in possession of specified land is not color of authority for placing him in possession of other and different land, and one in peaceable possession of such other land and dispossessed by the officer executing such writ may have it restored, by action of forcible entry and detainer. Wyatt v. Monroe, 27 Texas, 269, distinguished.</p> <p>2. —Same—Identity of Premises — Question of Fact.</p> <p>In an action of forcible entry and detainer for the restitution of possession of land from which plaintiff had been evicted by an officer executing a writ of possession in favor of another, it was a question of fact to be determined by the trial court whether the land of which plaintiff had been dispossessed was within the boundaries described in the writ of possession.</p> <p>3. —Same—Boundaries.</p> <p>The boundaries of land which a writ authorized the officer to put in possession of another were described as beginning at and lying east of the northeast corner of another known tract and extending to the east line of the survey by course and distance, which distance would overrun such east line. Plaintiff was put out of possession of land occupied by him, and lying west of such beginning corner, which was fixed by bearing trees identified on the ground, and the trial court found the premises occupied by him not within the boundaries described in the writ. The evidence is considered and held to support if not to require this finding. The corner and bearing trees should bo given preference over distances east and west in determining the beginning point and west boundary of the land described.</p> <p>4. —Forcible Entry and Detainer — Description—Amendment—Practice on Appeal.</p> <p>Complainant in forcible entry and detainer may amend his description of the premises (Ochoa v. Garza, 1 W. & W. C. C., sec. 939, disapproved), and objection to its sufficiency comes too late when made for the first time on motion for rehearing in the appellate court.</p>

<p>1. —Negligence—Accident—Charge.</p> <p>A plea and evidence supporting it which sought to excuse the act of negligence charged, as being a mere accident, was only, in effect, a denial of negligence. The charge having directed a finding for defendant unless the negligence was proven, it was not error to refuse a requested instruction relieving defendant from liability if the injury was due to unavoidable accident.</p> <p>2. —Carriers of Passengers — Contributory Negligence.</p> <p>The act of plaintiff intending to take passage on a trolley car in standing four feet from the track on the level surface prepared by the carrier for that purpose, did not present the issue of his contributory negligence in thus exposing himself to being struck by an object thrown from the car by the motorman, which was the cause of his injury.</p> <p>3. —Judge and Jury — Urging an Agreement.</p> <p>Remarks of the judge to a jury disagreed only on the amount of damages, urging on them a further effort to reach a verdict, considered and held not to show the exercise of undue influence upon their action.</p> <p>4. —Practice on Appeal — Damages—Remittitur.</p> <p>Thie submission to the jury, as an element of damages, of alleged expenses for medicines of which there was no proof, was error, but was capable of being cured on appeal by remitting all of the recovery which, under the pleading and charge, could be ascribed thereto.</p>

<p>1. —Practice—Overruling Demurrer — Instructing Verdict.</p> <p>It is error for a trial court to refuse to admit evidence in support of a plea and to instruct a verdict against the same after having overruled general and special exceptions thereto.</p> <p>2. —Bankrupt—Failure to Schedule Asset — Right to Sue — Estoppel.</p> <p>When the failure of a bankrupt to schedule an asset (as for instance a</p> <p>claim for damages) is not done for the purpose of concealing his property, and the trustee is fully informed of the existence of the claim and refuses to prosecute it for the benefit of his creditors, the title to such asset reverts to the bankrupt when the bankrupt proceedings are closed, and the bankrupt is not estopped from thereafter prosecuting the same in his own name and for his own benefit.</p> <p>3. —Same—Claim for Damages.</p> <p>Intimated that a claim by a bankrupt for damages for a wrongful and malicious suing out of an attachment is not a cause of action that could be prosecuted by a trustee in bankruptcy.</p> <p>4. —Same—Title of Trustee — Reversion to Bankrupt.</p> <p>The title of a bankrupt to his property, real or personal, passes to the trustee only for the purpose of the trust, and when the trust has been administered the special title of the trustee reverts to and becomes merged in the original title of the bankrupt.</p> <p>5. —Appeal—Affirming Judgment — Practice.</p> <p>That the trial court erred in overruling instead of sustaining general and special exceptions to a plea in reconvention is no reason why the judgment of the trial court should be affirmed against the appellant instead of being reversed and the cause remanded when the trial court thereafter erroneously held that appellant was estopped to set up said plea. A party should not thus be denied an opportunity to amend a defective plea.</p> <p>G. — Same—Absence of Cross Assignments.</p> <p>In the absence of a • cross assignment complaining of the action of the trial court in overruling exceptions to a plea in reconvention, the appellate courts will not pass on the sufficiency of the plea as against special exceptions.</p>

<p>1. —Contract by City — City Charter — Construction.</p> <p>A city charter provided that no contract should be binding upon the city unless it was signed by the mayor and countersigned by the comptroller. Held, said provision of the charter was not intended to apply to contracts of a minor character and involving small amounts, as, for instance, the hiring of teams by the day by the street commissioner to work on -the streets of the city.</p> <p>2. —Same—Repairing Street — Scope of Authority.</p> <p>Where it was not questioned that the foreman of a force of men engaged in repairing the streets of a city had the authority to haul gravel by wagons from a railroad car to the places to be repaired, such foreman would have authority to use the teams for the purpose of moving the car to a more convenient position on the railroad track, and if the city would be liable for injury to the teams in the one case, it would be liable in the other.</p> <p>3. —Bailment for Hire — Negligence—Liability.</p> <p>Where teams were hired to a city for work upon its streets, the drivers of the teams being hired and paid by the owners of the teams but to be under the direction and control of the city’s foreman, the city would not be liable for injury to the teams resulting from the negligence of the driver, though he was carrying out the orders of the foreman; but otherwise if the injury was the proximate result of the negligence of the foreman.</p> <p>ON REHEARING.</p> <p>4. —City—Hired Team — Injury—Liability.</p> <p>Where a mule hired by a city for work upon its streets is injured through thle negligence of the city’s foreman, the' city would be liable irrespective of the validity of the contract of hiring under the city charter.</p> <p>5. —Negligence—Proximate Cause — Charge. •</p> <p>Upon the issue of alleged acts of negligence as proximate cause of injury, charge considered and held to sufficiently submit the issue.</p>

<p>Appeal from the County Court of Nacogdoches County. Tried below before Hon. P. P. Marshall.</p>

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

<p>1. —Trespass to Try Title — Special Damages — Pleading.</p> <p>Damages for the removal of a house from the tract of land in controversy by the defendant in trespass ■ to try title, are not recoverable in the absence of pleading setting up said fact. A prayer for damages in general terms is not sufficient.</p> <p>2. —Same—Fundamental Error — Judgment Without Pleading.</p> <p>In the absence of pleading setting up the facts, a judgment in trespass to try title for damages for the removal of a house from the land in controversy is such fundamental error as will require the appellate courts to reverse the judgment although there was no assignment of error based thereon.</p>

<p>1. —Community Estate — Partition—Homestead.</p> <p>Section 2, art. XVI, of the Constitution does not inhibit the inclusion of the homestead in a partition of a community estate during the lifetime of a surviving husband or wife when the homestead is but a part of the estate and the partition can be made without depriving the survivor of the possessory rights which the Constitution confers. Hence in the partition of such an estate the homestead should be included.</p> <p>2. —Same—Improvements—Joint Tenants.</p> <p>In a partition of community estate the surviving husband is not entitled to a credit for permanent improvements placed by him upon the homestead after the death of the wife. One joint tenant can not improve another out of his estate. ,</p> <p>3. —Same—Surviving Husband — Compensation.</p> <p>Before demand by the heirs of a deceased wife for partition of the community estate and refusal by the surviving husband, the heirs are chargeable with their ratable part of such reasonable expenses in the way of taxes, repairs and services of the surviving husband as were reasonably necessary in the care and preservation of the property. It would be otherwise after demand made for partition and a refusal by the surviving husband.</p> <p>4. — Same—Homestead—Agricultural Products.</p> <p>Agricultural products grown by a surviving husband upon the community homestead belong to him exclusively, and he is entitled to pro rata compensation therefor when fed to community livestock.</p>

<p>Injunction — Jurisdiction.</p> <p>Even if a district judge has the power to issue a writ of injunction restraining the enforcement of a judgment rendered by a County Court, the writ should be made returnable to and tried in the court which rendered the judgment. The District Court has no jurisdiction to finally hear and determine the controversy.</p>

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

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

<p>1. —Personal Injuries — Passenger on Freight Train — Charge.</p> <p>The court charged the jury that if they found under the circumstances submitted to them that the plaintiff was a passenger, although riding on a freight train, it was the duty of the railroad company “to have used the highest degree of care for his safety;” the court defined the “highest degree of care” as “such care as a very cautious or prudent person in a like business would exercise under the same or similar circumstances; and such care is due by the servants of a railroad company to its passengers whether on a freight or a passenger train.” Held, the charge was not subject to the objection that it imposed too great a burden of care upon the defendant.</p> <p>2. —Same—Trespasser—Duty of Carrier — Charge.</p> <p>■ The court charged the jury that in the event they found that the plaintiff was a trespasser on one of the defendant’s freight trains, then the duty of the defendant was only “to use ordinary care not to wilfully or recklessly injure” him. Held, said charge imposed no greater burden on the defendant than if the court had instructed the jury that it was the defendant’s duty not to wilfully or recklessly injure him.</p> <p>3. —Charge—Designation of Parties — Harmless Error.</p> <p>A reference in the charge of the court to a minor who sues by next friend, as the “plaintiff,” if error at all is harmless error when the charge taken as a whole makes it unreasonable to suppose that the jury were misled thereby.</p>

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

<p>1. —Carrier—Shipping Contract — Lex Loci Contractus — Submission of Issue— Practice.</p> <p>In a suit against a railroad company for damages to a shipment of live stock, the defendant plead that the shipment was carried under and by virtue of a written contract executed in the State of Arkansas and was mainly to be performed in and was controlled by the law of that State; that said contract of shipment provided that in case of any claim for injury to said stock, the plaintiff should give notice thereof in writing to the defendant within a certain time after arrival of stock at destination, and that a failure to do so should bar a recovery for damages; that the contract also provided that the damages should be estimated according to the actual cash value of the animals at the time and place of shipment, not to exceed a certain amount per head; that said provisions were valid and binding in Arkansas; and that the plaintiff failed to give the notice of his claim for damages as above stipulated. The plaintiff replied that there was no consideration for said contract; that the saíne was not fairly made and was not reasonable in its terms. The undisputed evidence showed that the contract was made in Arkansas and was valid and binding there; that the plaintiff had an option of shipping the stock under either of two contracts in which .the liability of the defendant and the freight rate varied, and that he voluntarily chose the contract containing the above stipulations and paid about half the freight rate that he would have paid under the other contract, and that the- plaintiff did not give notice of his claim for damages as required in the contract; there was no evidence that the stipulation concerning the giving of notice of claim for damages was unfair or unreasonable. The court by its charge authorized a verdict for the defendant only in the event they found that there was a reduction in the freight rate or other consideration for the contract, or that the plaintiff had an option of shipping under a contract which did not contain the limitation on defendant's liability above mentioned and that said stipulations and conditions were reasonable. Held, that the court erred in submitting said issues to the jury, there being "no conflict in the evidence.</p> <p>2. —Same—Option as to Contract — Evidence.</p> <p>Evidence considered -and held to show without conflict that a shipper had an option in shipping contracts, varying in the carrier’s liability and freight rates.</p> <p>3. —Same.</p> <p>When the shipping contract which a shipper accepts and signs, itself recites that the rate of freight charged is less than the rate charged for shipments at the carrier’s risk, and that the shipper has had the option of making the shipment under the tariff rates either at the carrier’s risk or upon a limited liability, the testimony of the shipper that the agent of the carrier never gave him a choice of but one kind of contract and only one rate, which he supposed was the regular tariff rate, was not sufficient to warrant a finding, in the face of other evidence also to the contrary, that no reduction of rates was given or that the contract was not fairly made.</p> <p>4. — Same—Shipping Contract — Notice of Damages — Statutes.</p> <p>A statute of the State of Arkansas considered and held not to inhibit or invalidate a stipulation in a shipping contract that the shipper, in order to have a right of recovery, should give the carrier notice within a certain time and in a certain manner of a claim for damages to the shipment, but which did inhibit and invalidate a limitation upon the carrier’s liability for the value of animals killed or injured.</p>

<p>1. —Vendor's Lien — Assignment of Notes — Release of Lien.</p> <p>A vendor who has assigned without recourse the purchase money notes ■ secured b.y vendor’s lien, has no interest in the notes or lien, nor right to release same except by authority of their holder. His act in releasing the lien, though done in good faith on information that the notes had been paid, was an unwarranted intermeddling with the title, rendering him liable in damages to the holder of the notes, who had failed to protect himself by taking and recording a transfer of the lien, and whose security was impaired by subsequent sales by the vendee to purchasers ignorant of the fact that the lien, released of record, was in fact unpaid.</p> <p>2. —Same—Authority to Release.</p> <p>The vendor would be justified in executing the release of lien for purchase money if directed to do so by the authorized agent of the holder of the notes therefor, though the notes were then placed for collection in a° bank of which such agent was vice-president.</p> <p>3. —Same—Subsequent Mortgagee — Notice.</p> <p>One taking a mortgage on land after the unauthorized release of a prior lien for purchase money by the vendor would not be protected as an innocent ■ incumbrancer for value or entitled to recover damages against the vendor who so released the lien, if he had notice that such vendor had, previously to releasing, parted with his title to the purchase money notes and was no longer owner of the lien.</p>

<p>1. —Purchase of land — Payment—Ho Resulting Trust.</p> <p>Where a person seeking to enforce a resulting trust in land did not at the time of conveyance make any part of the cash payment, or made only a part thereof, and the obligation of the grantee named in the deed was given for a deferred payment, subsequent payments by such person of the deferred payment will not create a resulting trust in his favor. Such a trust must result, if at all, at the instant the deed is taken and the legal title is vested in the grantee. Unless the transaction is such at the moment the title passes that a trust will result from the transaction itself, no oral agreements and no payments before or after the title is taken, will create such a trust.</p> <p>2. —Same—loan not Payment.</p> <p>Where one, acting for another in the purchase of land, uses his own money in making the cash payment but becomes in no manner bound for the deferred payments, and intends and expects when he makes the cash payment to be repaid the same by the grantee in the deed, no trust results thereby to secure him in the repayment of thle money in the event the grantee fails or refuses to reimburse him. It would be otherwise if the estate was conveyed on his credit and he bound himself for the unpaid purchase money.</p> <p>3. —Same—Volunteer—limitation.</p> <p>The statute of two years’ limitation will bar an action for money paid upon land or in discharge of liens thereon when the payments were made without the knowledge or consent of the grantee and were purely voluntary.</p> <p>4. —Resulting Trust — Insufficient Evidence.</p> <p>Evidence considered and held insufficient to establish a resulting trust in land.</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 Falls County. Tried below before Hon. Richard I. Munroe.</p>

<p>1. —Attachment—Judgment—Amount.</p> <p>An attachment Hen can be foreclosed only for the amount for which attachment was sued out, though plaintiff recovers judgment for a greater sum.</p> <p>2. —Attachment—Affidavit—Amount.</p> <p>An affidavit for attachment stating the amount of indebtedness claimed on the notes sued on is not rendered uncertain as to amount by the addition of the words “exclusive of attorney’s fees,” where no attorney’s fees are sought to be recovered.</p> <p>3. —Attachment—Affidavit—Pleading.</p> <p>Defendant in attachment can not attack the sufficiency of the affidavit for procuring the writ by evidence that plaintiff did not in fact swear to what the attestation of the officer shows that he did, without pleadings raising such issue.</p> <p>4. —Attachment—Lien—Real Prop erty — Foreclosure—Pleading.</p> <p>It was not necessary for plaintiff to file pleading describing the land attached by him along with personal property, where his judgment merely establishes his lien against the land, decreeing foreclosure and sale of the • personal property only.</p> <p>5. —Practice on Appeal — Reformation of Judgment — Costs.</p> <p>Where error in the judgment as to the amount for which foreclosure of attachment Hen was awarded was not called to the attention of the trial court, the reformation of such judgment on appeal will not carry the costs thereof against the appellee.</p>

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

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

<p>1. —Trial Without Jury — Conflicting Evidence.</p> <p>When a trial is before the court without a jury and the evidence is conflicting, the judgment of the court, like the verdict of a jury, will not be disturbed if there was evidence to support it.</p> <p>2. —Boundary—Evidence.</p> <p>The issue being one of boundary between adjacent surveys, evidence considered and held sufficient to support the judgment of the court in locating the disputed boundary as contended for by the defendant.</p> <p>S. — Same—Pleading—Judgment.</p> <p>Pleading and judgment in a boundary ease considered and held that the judgment conformed to the pleading and was not subject to the objection that it did not definitely fix the boundary in dispute.</p>

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

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

<p>1. — Corporation—Mismanagement—Minority Stockholder — Receivership.</p> <p>A minority stockholder has the right to maintain a suit in behalf of the corporation against its defaulting officers and directors to recover funds and property of the corporation fraudulently appropriated by them, and for the redress of other fraudulent and ultra vires acts, and in a suit of this kind a court of equity has the inherent power to displace the management of guilty or negligent officials by the instrumentality of a receiver, but it must appear that such course is necessary for the preservation of the property and for the protection of the rights of the minority stockholder.</p> <p>% — Same—Directors—Antagonistic Interests.</p> <p>It is impossible for the business of rival and competing firms or corporations to be managed by the same officers without injury to one or the other concern, and the concern whose interests are jeopardized by the hostile management may have the management displaced by the appointment of a receiver.</p> <p>3. — Same—Receivership.</p> <p>The appointment of a receiver for á corporation does not necessarily result in the dissolution of the corporation, therefore the ohjeetion that the facts alleged in an application for the appointment of a receiver for a corporation are not sufficient to authorize the court to dissolve the corporation, is not a conclusive reason why the application should not be granted.</p> <p>4. —Same—Appeal to Directors — Remedy.</p> <p>When the directors of a corporation have adverse interests and are so intentionally managing the corporation as to wreck it, it is not necessary that a stockholder should apply first to the board of directors for a correction of their management before applying to the courts for the appointment of a receiver.</p> <p>ON MOTION FOB TffiHEABING.</p> <p>5. —Heading—Appointment of Receiver — Practice.</p> <p>When the petition sworn to by plaintiff in a proceeding for the appointment of a receiver is the only evidence of the truth of the facts alleged to obtain the appointment, and it is met by a denial of those facts in the answer sworn to by defendant, the appointment should be refused unless the plaintiff supports the controverted averments by additional affidavits.; and, under our practice, if the answer and controverting affidavits are not sufficiently full and definite, exceptions to the same should be urged by the plain- . tiff and acted on by the court so as to give the defendant an opportunity for amendment, before final action by the court. It is error for the court to overrule exceptions to the answer on the ground that it is not sufficiently full, definite and specific, and then grant the application for the appointment . of the receiver because the averments of the petition are not specifically denied.</p>

<p>1. —Vendor’s Lien — Waiver—Fraud—Rescission.</p> <p>Defendant having plead, in answer to a suit to foreclose a vendor’s lien, a waiver by taking other security for the deferred payment, an allegation by plaintiff in reply showing fraud inducing the taking of such additional security was proper as an answer to the plea of implied waiver of the vendor’s lien, and was not subject to exception on the ground that the fraud alleged was unavailable except as a ground for rescinding the whole transaction.</p> <p>2. —Same.</p> <p>Fraud was available in avoidance of an alleged waiver of a vendor’s lien by subsequently taking other security, though the transactions so pleaded were later than the sale and the creation of the lien.</p> <p>3. —Pleading—Relevant Facts.</p> <p>Facts, such as bankruptcy of a party, immaterial to the issue of waiver of a lien except as affording explanation of the acts relied on as implying such waiver, may be pleaded to explain the transaction and avoid such implication.</p> <p>4. —Evidence—Materiality—Prejudice.</p> <p>Admission of immaterial evidence is not ground for reversal where it could not have prejudiced the party complaining.</p> <p>5. —Vendor’s Lien — Waiver.</p> <p>Evidence considered and held not to show that a sale of land was, by implication of law, made with waiver of the vendor’s lien for deferred payments, and to support a finding that there was no waiver of the lien in fact by direct agreement.</p>

<p>1. —Corporation—Powers—Charter.</p> <p>The specification, in the charter of a corporation, of the purpose of its creation as being “to manufacture and deal in building material as is necessary in the transaction of business” did not give it power to contract to erect a building.</p> <p>2. —Same—Contract—Incidental to Corporate Purpose.</p> <p>A contract to construct a building which involved about equal expenditure for labor in construction and for materials furnished could not be regarded as merely incidental to the sale of the materials and authorized by implication from the charter power to manufacture and deal in th,e building materials.</p> <p>3. —Bond—Signature of Principal — Ultra Vires Contract.</p> <p>A bond to secure the performance of an obligation undertaken by another is not void as to the sureties signing it because not signed by the principal; neither is it invalid as to the sureties because the undertaking of the principal was not binding on him, being a contract ultra vires by a corporation.</p>

<p>1. —limitation—Possession—Admission of Tenancy.</p> <p>In an action of trespass to try title wherein the defendants claimed title under the ten years statute of limitation, to 160 acres of the land "sued for, evidence considered as to admissions by defendants that they were not holding the land adversely to the true owner, and held sufficient to sustain a finding by the court against the plea of limitation.</p> <p>2. —Same—Public land.</p> <p>Intimated that the occupancy of land under the belief that it was public land and with the intention of preempting it, would not be such adverse possession against the owner as would vest title in the occupant under the statute of limitation.</p> <p>3. —Deposition—Answer not Responsive — Practice.</p> <p>An objection to the answer of a witness, testifying by deposition, that the answer is voluntary and not responsive to the interrogatory, goes to the manner and form of taking and must be made in writing and notice thereof given to the opposite party before the commencement of the trial.</p> <p>4. —Trial—Testimony—Harmless Error.</p> <p>Where the answer of a witness to one interrogatory is subject to the objection that it is not responsive, but to another interrogatory the same answer is made and it is directly responsive thereto, the action of the court in overruling the objection to the first answer becomes harmless error.</p> <p>5. —Same—Explanatory Statements.</p> <p>Where the testimony of a witness as to statements and transactions between himself and a third party is merely explanatory of his subsequent conversations and transactions with the defendant, said testimony is admissible for said purpose.</p> <p>6. —Interrogatory—Failure to Answer — Who Might Object.</p> <p>Where a plaintiff, for the purpose of proving tenancy, by the defendant, asked its witness by interrogatory, among other things, whether or not defendant had paid rent on the land in controversy, the defendant can not complain of the action of the court in refusing to strike out the entire answer because the witness had failed to answer that portion of it.</p> <p>7. —Written Instrument — Non Est Factum — Issue of Fact.</p> <p>Where a defendant in trespass to try title denied under oath the execution of a written instrument relied on by plaintiff to prove tenancy of the defendant, testimony as to the execution by defendant of said instrument considered, and held sufficient to raise an issue of fact as to the execution of the same and therefore to require the admission of said instrument in evidence to be considered in connection with said testimony.</p>

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

<p>1. —Vendor and Purchaser — Assuming Incumbrances — Acceptance of Contract— Rescission.</p> <p>A vendee assuming the payment of an outstanding incumbrance upon the land becomes personally liable thereon; a subsequent rescission of the trade and reconveyance of the land by agreement between vendor and vendee, after the latter’s undertaking has been accepted by the holder of the incumbrance, will not release him from such personal liability, though he acted without notice that the incumbrancer had accepted his contract to assume the payment. Such contract was irrevocable without the mortgagor’s consent. (Will-son, Ch. J., dissenting.)</p> <p>2. —Contract—Rescission—Release of liability.</p> <p>A contract between the vendor and vendee whereby the land was reconveyed to the former considered and held not to constitute by its terms a release of the latter from his obligation to the holder of an outstanding incumbrance which, by his original contract, he had assumed to pay.</p> <p>ON MOTION FOB BEHEABING.</p> <p>3. —Fraud—Injury—Cancellation of Contract.</p> <p>Equity will not cancel a contract or relieve against its enforcement because of fraudulent representations inducing it, unless the complaining party will otherwise be prejudiced.</p> <p>4. —Same—Case Stated.</p> <p>Though a vendee of land was induced to make the purchase by fraudulent representations that an outstanding incumbrance had been discharged, no injury demanding rescission of the contract for his protection appeared when he did not assume personal liability for its payment and its lien against the land had been released by the holder.</p>

<p>1. —Jurisdiction—Notice of Appeal — Transcript.</p> <p>The mere fact that a notice of appeal was not carried into the minutes of the court, although entered on the judge’s docket, is not sufficient cause for the dismissal of the appeal.</p> <p>2. —Appeal—Transcript—Certificate.</p> <p>The clerk’s certificate to a transcript on appeal was that the transcript “is a true and correct transcript of the proceedings, etc.,” omitting the word “all” with reference to the proceedings; held, sufficient as against a motion to dismiss.</p> <p>3. —Same—Trial Without Jury — Exception to Judgment — Practice.</p> <p>Where a case is appealed without a statement of facts and on the conclusions alone of th,e trial judge, and it does not appear that any exception to the judgment or to the conclusions of fact and law was taken and entered of record in the trial court, assignments of error attacking such conclusions and judgment can not be considered on appeal.</p> <p>4. — Same—Statute Construed.</p> <p>What might appear by way of recital in the court’s conclusions filed ten days after the adjournment of the court, can not be taken as such entry of record of exception to the judgment as is required by art. 1333, Rev. Stats., in cases where appeal is prosecuted upon conclusions of fact and law alone.</p>

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

<p>Appeal from the District Court of Baylor County. Tried below before Hon. H. R. Jones, Special Judge.</p>

<p>Appeal from the District Court of Deaf Smith County. Tried below before Hon: D. B. Hill.</p>

<p>1. —Carrier—Live Stock — Delay in Furnishing Cars — Measure of Damages.</p> <p>Whether cattle are intended for immediate sale upon the market, or for feeding at destination and later sale, the measure of damages for failure of a railroad company to furnish cars for their transportation as per contract, is the same, viz.: the difference in value of the cattle at the immediate destination.</p> <p>2. —Same—Contributory Negligence.</p> <p>Pleading and evidence reviewed and held sufficient to render it reversible error for the trial court to refuse to submit to the jury the issue of contributory negligence on the part of a shipper of cattle in driving his cattle to a railroad station when he" knew that it was doubtful about the ears being there, and where he knew the water and pasturage were bad, instead of holding the cattle in better available pastures until assured of the arrival of the cars.</p>

<p>1. —Household Goods — Market Value — Qualified Witness.</p> <p>The mere fact that a witness admitted on. cross-examination that he did not know of any sales of second-hand household goods at a certain time and place, would not necessarily disqualify him from testifying as to their market value at said time and place. He may have known the market value in many other ways.</p> <p>2. —Same.</p> <p>The issue being as to the market value of second-hand feathers, the court erred in excluding the testimony of a witness as to such value who stated that although he had never bought or sold, nor seen bought nor sold any secondhand feathers at the particular place in question, yet he knew the market value of such feathers at or near that place by having received the market quotations for the same covering that date and place; that he had bought and sold both new and second-hand feathers at other places in the United States and in Mexico; that there was a general and tolerably stable market for said commodity and practically the same prices obtained all over the United States; that the market quotations are acted upon by dealers in different parts of the country.</p> <p>3. —Appeal—Remittitur—Practice.</p> <p>Where testimony as to the market value of an article in controversy is improperly excluded, the appellate court may require the appellee to remit the difference between his testimony and the excluded testimony as to value, as a condition upon which the judgment will be affirmed.</p>

<p>• 1. — Telegraph Company — Duty—Charge.</p> <p>In a suit against a telegraph company for damages for delay in the transmission and delivery of a message, charge of the court considered and held, when looked to as a whole, not subject to the objection that it imposed upon the defendant a greater degree of care than that required by law.</p> <p>2. —Same—Charge—“Reasonable Care.”</p> <p>The expression “ordinary care” means no less than “reasonable care,” and the use of the one instead of the other in the charge of the court in defining the duty of a telegraph company to transmit and deliver a message is not prejudicial error.</p> <p>3. —Same—Delay—Strike—Charge.</p> <p>Charge of the court considered in a suit against a telegraph company for delay in transmitting and delivering a message and wherein the company plead as a defense that strikers interfered with the operation of its lines, and held not subject to the objection that it permitted the jury to determine who was at fault in the strike.</p> <p>4. —Same—Negligence—Evidence.</p> <p>The evidence showed that the manager of a telegraph office pending a strike among the employees received without objection a message for transmission and delivery; that within thirty-five minutes thereafter it had been transmitted to a relay office; that the operator at the relay office, without making any effort to transmit the same by wire, forwarded the message by mail although he was not one of the strikers himself and no other operator on the line had refused to receive and forward the message; and that there were other lines not affected by the alleged strike over which the company might have sent the message. Held, the evidence was suffieint to support a verdict and judgment against the company for damages for negligent delay in delivering the message.</p>

<p>1. — Sale of land — Misrepresentation—Measure of Damages.</p> <p>Where the seller of land points -out to an intending purchaser a tract of land other than the one actually conveyed the measure of damage in a suit for damages is the difference between the value of the consideration given for the conveyance and the value of the land conveyed. Therefore when the promissory notes of third parties are assigned by the purchaser to the séllelas the consideration for the conveyance it is error for the court to assume in its charge that the face value of the notes is their reasonable'market value.</p> <p>2. — Same—:Value of Consideration.</p> <p>Where the purchaser of land assumed the payment of a note secured by . lien on the land but not due for nearly thirty years and bearing only five percent interest, it was error for the court, in a suit by the purchaser for damages for fraudulent misrepresentations by thd seller, to assume that the present value of the note was its face value, and in effect to require the seller to pay to the purchaser that amount in cash. The value of the note should have been submitted to the jury.</p>

<p>Appeal from the District Court of Haskell County. Tried below befor Hon. 0. C. Higgins.</p>

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

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

<p>1. —Sale—Agency.</p> <p>An agent" authorized to purchase for his> principal only walnuts of the new crop, though empowered to exercise his judgment as to the variety and quality thereof, did not bind the principal by a purchase of nuts of the previous year’s crop which were in consequence of age wormy, defective, and unsalable. The seller was bound to know the limitations on the agent’s authority.</p> <p>2. —Sale—Ratifying and Repudiating.</p> <p>A purchaser who had received walnuts bought by his agent authorized only to purchase those of the new crop, but given discretion as to selection of variety and quality, had no right to repudiate the sale on discovery that the- quality was bad, the sale being without warranty. But he could repudiate on discovery that they were not of the new crop which he had authorized the agent to purchase; and his repudiation was in due time when made promptly on discovery of that fact, though he learned it only after receiving and beginning the sale of the article to customers, and had previously found the quality to be bad.</p>

<p>Appeal from the District Court of Milam County. Tried below before Hon. -J. C. Scott.</p>

<p>1. — Contract of Employment — Breach—Duty of Employee — Charge.</p> <p>Where, in an action by an employee for damages for breach of a contract of employment, the court instructed the jury that it was the duty of the plaintiff to use reasonable diligence to obtain other employment, the charge was correct as far as it went, and if the plaintiff desired a more specific instruction to the effect that he was not required to seek employment in any kind of service except that from which he had been discharged or-for which he was fitted, he should have requested such a charge.</p> <p>2. —New Trial — Supplemental Motion — Delay in Filing.</p> <p>There is no law authorizing or permitting the filing of a supplemental motion for new trial more than two weeks after the trial of the cause and a week after the original motion for new trial- had been overruled.</p> <p>3. —Same—Jurors—Disqualifications.</p> <p>The fact that a juror who served in the trial of a case was under indictment for a felony affords no stronger reason for granting a new trial than if he was subject to any of the other disqualifications mentioned in art. 3139, Rev. Stats.; they are of equal importance. It is too late after the trial to raise a question as to the qualification of a juror.</p>

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

<p>Telegraph — Office Hours — Delay.</p> <p>Where the evidence was clear that defendant had established and maintained reasonable office hours at the office of delivery, whereby the message could not, in usual course, have been sooner transmitted, a charge that defendant would not be excused for delay in the transmission by this fact if in the habit of receiving and delivering after such office hours, was not warranted by testimony of agent there that he had merely done so at times, for accommodation, when he happened to be in the office.</p>

<p>1. —Contract—Time of Payment.</p> <p>One of two joint owners of land having contracted to sell his interest to the other, who had found a purchaser, no date for payment being fixed, but the consideration to come out of the amount paid by the expected purchaser, could not, on that sale being consummated, because of a slight delay in completing it, due to the purchaser requiring some changes in the deeds, and not appearing to have prejudiced him, repudiate his contract to sell to his co-owner for the price agreed on, and demand half the sum realized by the latter on the sale.</p> <p>2. —Brief.</p> <p>A brief not signed by the party or his attorney does not require consideration.</p>

<p>1. —Additional "Insurance — Forfeiture—Commingling of Stocks.</p> <p>The authorities holding an insurance policy forfeited under the' clause prohibiting additional insurance, where the stock' of goods covered is after-wards commingled with another stock insured under other policies, considered and only a qualified approval expressed.</p> <p>2. —Same—Burden of Proof.</p> <p>The burden of proof to sustain forfeiture of an insurance policy by the commingling of the stock covered with other stock separately insured so as to constitute additional insurance on the former, is upon the defendant company. The property covered by both policies must be the same to work a forfeiture, and defendant must prove such commingling as to prevent separate identification.</p> <p>3. —Same—Sufficiency of Proof.</p> <p>Evidence considered and held not sufficient to show such commingling of stock as to prevent identification, where the owners of an insured livery stable stock bought out another stable and removed the first stock thereto.</p>

<p>1. —Limitation—Ten Years — Successive Occupants.</p> <p>Evidence as to possession of land by successive claimants, considered, and lield sufficient, although accompanied with much swapping and trading and with little formality, to warrant the court in instructing a verdict for the defendants under their plea of limitation of ten years.</p> <p>2. —Same—Insufficient Evidence.</p> <p>Evidence as to occupancy of land considered and held insufficient to show such continuous adverse possession by the defendant and his predecessors in tiule as would authorize the submission of the issue of title by limitation under the ten years statute.</p>

<p>1. —Personal Injuries — Flagging Railroad Train — Pleading—Contributory Negligence.</p> <p>In a suit for damages for personal injuries received by a minor 17 years of age and caused by being struck by a locomotive while attempting to flag a train at night, petition considered, and held to show such contributory negligence on the part of the minor as rendered the same subject to general demurrer.</p> <p>2. —Same—Contributory Negligence — Avoidance.</p> <p>Under the rule that when the allegations of a petition show a prima facie case of contributory negligence on the part of the plaintiff in a case of personal injuries, it devolves on the pleader to explain and avoid the apparent negligence, petition considered in a case of injuries received by a minor while standing on a railroad track attempting to flag an approaching train, and held subject to general demurrer.</p>

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

<p>1. — Telegraph Company — Delay in Delivering Message — No Cause of Action, When.</p> <p>When it is not made to appear that but for the negligent delay of a telegraph company in delivering a message, the addressee could and would have reached his home sooner than he did and so have sooner comforted and consoled his sick wife and have attended the fimeral of a new bom infant, no cause of action for damages for mental anguish suffered either by the wife or the husband is established against the company.</p> <p>8. — Same—Speculative Damages.</p> <p>A third party telegraphed an absent husband that his, the addressee’s, wife, was sick and his infant dead; the husband replied to the same party that he would be home that night, and requested him to see that his wife have every attention; this reply was not delivered by the telegraph company until after the husband had arrived at home; there was no evidence that the wife did not have every attention. Held, the husband was not entitled to recover from the telegraph company damages for the increased suffering of the wife because she was not notified of the time when he would return home. Such damages are too uncertain, speculative and conjectural.</p>

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

<p>1. —Broker—Dual Capacity — Commissions.</p> <p>It is well settled that a person can not, act in the capacity of agent for both buyer and seller and recover commissions from both or from either party unless he should so act with the full knowledge and consent of both parties.</p> <p>2. —Same—Evidence.</p> <p>Evidence in a ease in which a land agent sued for commissions upon an exchange of properties considered, and held that he was not entitled to recover, on the ground that he had represented both parties in the transaction .without the knowledge or consent of the defendant.</p>

<p>Appeal from the District Court of Potter County. -Tried below before Hon. J. N. Browning.</p>

<p>Execution — Variance in Uame — Void Sale.</p> <p>A mistake in the- Christian or baptismal name of the plaintiff in execution is more than a mere irregularity; the provision 'of the statute requiring the name of the plantiff in the judgment to appear also in the execution, is mandatory; therefore a sale of land under an execution in which the Christian or baptismal name of the plaintiff was erroneously stated to be John, instead of James, was void.</p>

<p>Appeal from the Forty-fourth Judicial District, Dallas County. Tried below before Hon. E. B. Muse.</p>

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

<p>Statement of Facts.</p> <p>A statement of facts not bearing the approval of the trial judge will not be considered, nor furnish a basis for considering error assigned on the refusal of a peremptory instruction or the insufficiency of the evidence to support recovery.</p>

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

<p>1. —Homestead—Insolvent Estate.</p> <p>On the death of the owner, the estate being insolvent and a constituent member of the family surviving, the homestead descends to the heirs free from the claims of creditors.</p> <p>2. —Same—Constituent of Family — Grandchildren—Divorced Daughter.</p> <p>Under article 2046, Bevised Statutes, providing that the homestead of decedent shall be set aside for the “benefit of the widow and minor children and unmarried daughters,” grandchildren are not entitled to the benefit of the homestead, but a daughter once married, but divorced and living with the family, is an “unmarried daughter” within the meaning of the statute.</p> <p>3. —Same—Debts—Partition—Lien.</p> <p>The husband and wife having died, leaving an insolvent estate on which no administration was had, and a homestead occupied by a divorced daughter, the homestead descended to the heirs free from the claims of creditors. On its partition between th.e heirs, one of them who had paid or purchased debts against the decedent acquired no right to have them enforced as a lien in his favor against the homestead.</p> <p>4. —Same—Taxes.</p> <p>One of the heirs who had paid the taxes assessed against the interest of all in the homestead, on its sale for partition between them was entitled to payment, out of the proceeds before their division, of the portion of the tax so paid which was chargeable against the interest of the other heirs in the property.</p> <p>5. —Cases Distinguished.</p> <p>Boco v. Green, 50 Texas, 483; Trammel v. Neal, 1 Posey, U. 0., 53; Boots v. Robertson, 93 Texas, 365; Wilkins v. Briggs, 48 Texas Civ. App., 596, distinguished from this case.</p>

<p>Appeal from the Sixty-first Judicial District, Harris County. Tried below before Hon. Norman G. Kittrell.</p>

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

<p>Contract — Fraud or Mistake — Cancellation.</p> <p>Where a contract for the sale of land describes other land than that actually pointed out to and inspected by the prospective purchaser or his agent, and the purchaser was induced to enter into the contract by reason of the superior quality of the land pointed out, it is immaterial whether the pointing out of different land was done through fraud or mistake; the contract can not in either case be enforced by the seller against the buyer.</p>

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

<p>1. —Continuance.</p> <p>An appellant can not complain of the refusal of a continuance on application made by his codefendant in which he did not join.</p> <p>2. —Same—Absence of Party.</p> <p>An application for continuance because the party was prevented from being present by sickness was addressed to the discretion of the court and reviewable only on a showing of its abuse. The case is held not to show such abuse or discretion, an issue of fact being made as to the party’s inability to attend.</p> <p>3. —Continuance—Surprise—Harmless Error.</p> <p>Error in refusing continuance claimed on the ground of surprise by new pleading was not ground for reversal where the new pleading set up no new facts, but merely sought a personal judgment not before asked, and the judgment was, on other grounds, so reformed as not to allow such personal judgment.</p> <p>4. —Executor’s Sale — Order of Court.</p> <p>A sale of land belonging to an estate made by an executor without order of the County Court or power given by the will to sell without order passed no title.</p> <p>5. —Independent Executor — Will.</p> <p>A will, in order to exempt the executor from the authority of the court, should, if the language of the statute (Rev. Stats., art. 1995) is not followed, clearly show a desire on the part of the testator.to exclude the active supervision and control of the County Court.</p> <p>6. —Same.</p> <p>The words, “I will that my husband, J. H. B., shall be the executor of my .estate without bond, and that he shall have power to do all things necessary in settling up the same, as provided in this my last will and testament,” did not create the husband an independent executor nor authorize him to sell lands of the testators estate without order of the court authorizing him to do so.</p> <p>7. —Same.</p> <p>Neither exempting the executor from giving bond, nor conferring upon, him special authority to sell for any specific purpose, nor providing that the just debts of the testator be paid, would make him an independent executor. The probate court would still have jurisdiction over the allowance of claims, the settlement of the executor with heirs or devisees, and the final distribution of the estate.</p> <p>8. —Estates—Executor—Heirs—Jurisdiction.</p> <p>The District Court had jurisdiction of an action by heirs to cancel deeds, remove cloud from their title, and determine the rights of persons holding under conveyance of the lands 'of their ancestor, made by his executor without order of the County Court and under an unfounded claim of right to administer as independent executor. The District Court alone could afford this relief, and the fact that the title had been clouded by the act of the eixeeutor and that administration was still pending in the probate court presented no obstacle to the exercise of its jurisdiction.</p> <p>9. —Same—Personal Judgment.</p> <p>The District Court had no jurisdiction, while administration was pending in the County Court, to render a personal judgment against the executor, at' suit of the heirs, for his unauthorized sale of lands, the separate property of the testator, his deceased wife, mortgaged to siecure a community debt, and his appropriation of the proceeds to discharge of such mortgage for which the executor was himself primarily liable. Nor was such relief so incident to an action of the heirs to set aside the conveyance and remove the cloud it cast up on their title as to support such jurisdiction. The probate court had sole power to determine the executor’s liability, and the judgment of the District Court was without effect, though directed to be enforced, not by executive, but by certifying it to the probate court to be there enforced subject to proper offset from his accounts as executor.</p> <p>10. —Executor—Debt to Estate — Jurisdiction.</p> <p>The debt of an executor to the estate, whether incurred before administration or arising during it, is a matter for determination in the probate court, and not to be adjudicated in a suit by the heirs against him in another tribunal.</p> <p>11. —Estates—Mortgage—Credit on Claim — Equities—Jurisdiction.</p> <p>A holder of a mortgage on land belonging to an estate took a deed thereto from the executor in consideration of the extinguishment of his debt, and sold the growing timber on the land to other parties. The heirs, by suit in the District Court, set aside the deed to the mortgagee, but they and the purchasers of the timber consented that his sale thereof be affirmed, as being for a fair price, and the judgment charged the mortgagee with the price received for {lie timber, as a credit on the mortgage debt. Held:</p> <p>(1) That the heirs, by their consent, could not, as against the mortgagee, validate the sale of the timber while setting aside the executor’s deed, and compel a credit of the price realized by the mortgagee upon his incumbrance, in the absence of a showing of equities necessitating that relief for their protection, such as insolvency preventing the mortgagee from answering personally and proof that the timber had been removed from the land and would not return to the estate on the executor’s conveyance being set aside.</p> <p>(2) That if the proper equities to support such a decree were shown, the relief awarded was beyond the jurisdiction of the District Court in such action, the allowance and settlement of the mortgagee’s claim and proper credits being a matter solely within the jurisdiction of the probate court. The same was also true of an allowance of a commission to the mortgagee for making the sale of the timber.</p> <p>ON MOTION FOR REHEARING.</p> <p>12. —Jurisdiction—Matters Incidental to Controversy.</p> <p>The District Court having jurisdiction over the main question involved, may determine in the same action all incidental questions and rights necessary to its disposition, but only those so necessary, if they are questions which by themselves are exclusively within the jurisdiction of another court, such as matters involving settlement of estates of decedents on which administration is pending.</p> <p>13. —Same.</p> <p>The unauthorized conveyance of incumbered land by an executor to the mortgagee having been cancelled at suit of the heirs in the District Court, neither the heiis nor purchasers of the timber on the land from the mortgagee could complain of the refusal of the court to affirm such sale of the timber and credit the price paid on the mortgage. Such decree was not necessary as an incident to the setting aside of the executor’s deed. It was proper to leave their rights resulting from the judgment to be settled by the probate court.</p>

<p>Appeal from the District Court of Harrison County. Tried below before Hon. W. 0. Buford.</p>

<p>Appeal from the County Court of Tarrant County. Tried below before Hon. C. T. Prewett.</p>

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

<p>Power of Attorney With Interest — Construction—Executed Contract.</p> <p>A power of attorney coupled with an interest set out, and construed to be a present conveyance of an undivided interest in all lands owned by the grantors as heirs of a certain ancestor, and not an executory contract intended to operate only on such lands as the grantee or attorney in fact might recover.</p> <p>A power of attorney coupled with an interest in that which is to be produced by the exercise of the power therein mentioned, viz.: taking possession of, suing for, perfecting title and paying all expenses, is not a power of attorney coupled with an interest in the thing itself, but in the thing to be created by the exercise of the power, and hence, it is irrevocable and passes no title until the powers therein are fulfilled. Garner v. Boyle, 98 Texas, 460; Taylor v. Taul, 88 Texas, 665; Hennessee v. Johnson, 13 Texas Civ. App., 530; 31 Cyc., sec. 4, p. 1297 et seq.; 1 Am. & Eng. Ency. Law, 1st ed., 444-5.</p>

<p>1. —Contract—Promissory Hote — Construction.</p> <p>H. entered into a written contract with S. to move a house belonging to S. from one locality to ahother within a certain time for a certain price; the contract stipulated that H. should forfeit five dollars for each day the completion of the work was delayed; at the same time that the contract was executed, S. advanced to H. $300 to be used in performing the contract, for which sum H. executed his note to S., the note reciting that it was subject to the terms of the contract; when about half performed, H. abandoned the contract. In a suit upon the note, held, the stipulation in the note that it was subject to the terms of the contract did not mean that it was security only for the forfeit of five dollars per day, and S. was entitled to a recovery for the amount of the note.</p> <p>2. —Witness—Right to Contradict.</p> <p>The rule that a-party will not be permitted to impeach the general reputation for truth of a witness introduced hy him, does not preclude the party from proving the truth of any particular fact by any other competent testimony in direct contradiction to what the witness may have testified. This rule applies with special force when the witness sought to be contradicted is the opposing party to the suit and therefore hostile to the party offering his testimony.</p> <p>3. — Contract—Partial Performance — Right of Recovery — Rule.</p> <p>If an employe abandons his contract, the employer may be charged with only the reasonable worth or the amount of the benefit he has received upon the whole transaction, not to exceed the contract price; and he may reconvene for his damages for the breach of the contract by the employe. When the employe is discharged without cause, or is prevented by the employer from completing the performance, he is entitled to recover for the part performed, and the damages he has sustained by reason of the breach of the contract by the employer. If both parties have broken the contract, or there has been a mutual abandonment of it by both parties, the employe is entitled to recover the reasonable worth of the services he has rendered the employer.</p>

<p>1. —County School Land — Lease—Constitutional Law.</p> <p>The power given to counties by section 6, article VII, of the Constitution to sell or “dispose” of their public school lands, authorizes the counties to lease said lands for a reasonable length of time.</p> <p>2. —Same—Lease and Option — Void Contract.</p> <p>A Commissioners’ Court had no power in 1895 to execute a lease of the county school lands for a term of twenty years coupled with an exclusive option in favor of the lessee to buy the land at any time during the term of the lease at one dollar an acre payable twenty years from the date of the exercise of the option with four percent interest. Said court was without authority to thus bind the county and succeeding Commissioners’ Courts for a possible period of forty years. Such contract was void because unreasonable and against public policy, and the county could recover possession of the land in an action of trespass to try title. Justice Speer dissenting.</p> <p>3. —Same—Receipt of Rentals — Ho Ratification.</p> <p>The fact that the county authorities received for a number of years the rentals from a void lease of the .county school lands, would not vitalize or ratify the contract of lease. That could not be done indirectly which could not be done directly.</p>

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

<p>1. —Railroads—Duty of lookout — Negligence.</p> <p>It" is the duty of the employes of a railroad company operating its trains to exercise ordinary care and caution to discover persons on its track at places where they may be expected to be found, and a failure to use such care and caution is negligence on the part of the company.</p> <p>2. —Same—Evidence.</p> <p>Evidence considered and held sufficient to support the verdict of a jury finding that the operatives of a railroad train, which ran over and killed a child seven and one-half years old while walking along a railroad track, failed to keep a proper lookout for persons on the track, and that had such lookout been kept the presence of the child on the track would have been discovered in time to have avoided, by the exercise of ordinary care, injuring him, and that in the failure to keep such lookout they were guilty of negligence.</p> <p>3. —Jury—Credibility of Witness.</p> <p>A jury is not bound to accept a.s true the testimony of a witness although there be no direct testimony contradicting- him.</p> <p>4. —Infant—Contributory Negligence — Question of Fact.</p> <p>The conduct of an infant of tender years, in the matter of contributory negligence is not to be judged by the same rules which govern that of an adult. In the case of a child seven and a half years old going upon and walking along a railroad track where he was killed by a railroad train, evidence considered and held to raise a question of fact on the issue of contributory negligence which was properly submitted to the jury and which was sufficient to support a verdict against the railroad company.</p> <p>5. —Parents—Contributory Negligence — Question of Fact.</p> <p>Whether or not parents are guilty of contributory negligence in permitting a child of tender years to go upon a railroad track is ordinarily a question of fact for the jury, and not the court, to decide. Evidence considered and held sufficient to support a verdict in favor of parents on this issue.</p> <p>6. —Death of Infant — Damage to Parents — Question of Fact.</p> <p>Whether or not parents had a reasonable expectation of receiving any pecuniary benefits from an infant, wlio had been negligently killed by a railroad company, either during his minority or after he attained his majority, is ordinarily a question of fact for determination by the jury under all the evidence; and the fact that the amount of damages is difficult or impossible of accurate ascertainment is not sufficient to justify a denial of a recovery; this must be left to the discretion of the jury; it is not necessary that any witness should name a particular amount.</p> <p>7. —Same—Verdict not Excessive.</p> <p>A verdict for $3,500 held not excessive in the ease of parents suing for the negligent killing of their only child, a boy seven and a half years old, the parents being thirty-three and thirty years of age respectively.</p>

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

<p>1. —Will—Prolate—Venue—Jurisdiction—Statute.</p> <p>Under the provisions of article 1843, Sayles’ Civil Stats., the County Court of the county in which a decedent had his residence at the time of his death has jurisdiction to probate his will without regard to the situs of his property. It is only necessary thait the application for the probate of a will should state where the property of the deceased is situated when the deceased had no fixed domicile or residence and the will is sought to be probated in the county in which the principal part of his property is situated, under the provisions of subdivision 2 of article 1843, Sayles’ Civ. Stats.</p> <p>2. —Same—Notice of Application — Presumption.</p> <p>In the absence of anything in the transcript showing that notice of an application to probate a will was not issued, or that notice issued was insufficient, the presumption should obtain in support of the judgment of the court acting upon the application that notice was issued and served in compliance with the statute, especially when the parties at interest appeared and answered in the courts below and raised no question concerning the notice.</p> <p>3. —Same—Rejection of Testimony — Harmless Error.</p> <p>Error in the exclusion of evidence in the County Court in a contest over the probate of a will, becomes harmless when the evidence is admitted upon appeal and trial de nova in the District Court.</p> <p>4. —Testimony—Mental Capacity.</p> <p>The issue being whether or not a testator had mental capacity to execute the will in question, an objection to the testimony of witnesses that it was opinion evidence can not be sustained when it appears in connection therewith that said witnesses had an intimate acquaintance with the testator, and detailed facts and circumstances which justified the expression of the witnesses’ opinion that the testator was insane.</p>

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

<p>Appeal — Filing Bond — Time.</p> <p>When the term of the court in which a ease is tried might by law continue in session more than eight weeks and the appellant is a resident of the county, in order to perfect the appeal the appeal bond must be filed within twenty days after notice of appeal is given.</p>

<p>Guardianship — Bill of Review — Appeal—Jurisdiction.</p> <p>An action in a County Court to review and correct a guardian’s. account is a probate proceeding whether it he entered on the civil or probate docket of said court, and an appeal from the judgment entered in such action lies in the first instance to the District Court of the county and not to a Court of Civil Appeals.</p>

<p>Master and Servant — Negligence—Contributory Negligence.</p> <p>The foreman of a fencing crew in service of a railway, having charge of the operation of a hand car carrying the crew to the place of labor, ran the car into an open switch, causing its derailment and his .injury. The switch had been opened to permit the entry of a train to a packing house on the siding and left in that condition during a delay incident to the necessity of icing the cars of packing house products. It was properly set and bore a target indicating .that the switch was open, which could easily be seen by the foreman on approaching it on his car. No other provision was made for warning operators of hand cars of the position of switches, and they were expected to observe how they were set on approaching them and to lift the hand cars over them if open, and this customary method of operating them was known to the foreman, who, through inadvertence, failed to notice how the switch was set, which a glance at it on approaching would have disclosed to him. Held:</p> <p>■ (1) That no negligence on the part of the defendant railway was shown by these facts, the warning against open switches by the position of the switch target being adequate to protect those operating hand cars with due care.</p> <p>(2) That plaintiff, the foreman, was guilty of contributory negligence in failing to observe the condition of the switch on approaching it.</p>

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

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

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

<p>Error from the Sixty-First Judicial District, Harris County. Tried below before Hon. Norman G. Kittrell.</p>

<p>ON MOTION TO STRIKE OUT STATEMENT.</p> <p>1. —Statement of Facts — Time of Filing — Statute.</p> <p>The Act of May 1, 1909, Laws 31st Leg., p. 374, with reference to preparation of statement of facts, being a remedial law, will not be restricted in its application to cases tried after it went into effect. In a case tried after the statute was passed, but before it was in force, a statement filed after it went into effect, and in due time under its terms, but too late under the statute in force when the case was tried, should not be struck out because not filed in time.</p> <p>2. —Statement of Facts — Question and Answer.</p> <p>The Act of May 1, 1909, does not expressly require, but apparently intends, that the statement of facts should be in narrative form. The insertion of questions and answers may be sometimes necessary in the preservation of exceptions in this form, rather than by bill. Statement considered and held not so far violative of the rule against inserting questions and answers in the statement of facts as to justify the striking out of such statement.</p> <p>ON MERITS OF APPEAL.</p> <p>3. —iWritten Instrument — Parol Evidence.</p> <p>Parol evidence is always admissible to explain and control the effect of written instruments introduced as admissions of a party and not as contracts passing or extinguishing a right in litigation.</p> <p>4. —Same—Case Stated.</p> <p>In trespass to try title, a lease to plaintiff of land, including that in controversy, from those whose title was afterwards acquired by defendants, could be explained by paroi evidence of plaintiff showing that the part in controversy was not claimed by her under the lease, but by a different right, and that she did not know that it was included in the leased premises.</p> <p>5. —Same—Pleading.</p> <p>It was not necessary for plaintiff to plead fraud or mistake in a lease, introduced to show that she claimed as tenant under the holders of a title which defendants Jiad acquired, in order to entitle her to introduce paroi evidence showing that she did not know that such land was included in the lease nor intend to claim same under it.</p> <p>6. —Paroi Sale of Land.</p> <p>Evidence of a sale of land by paroi, with payment and possession, held to present questions of fact as to the validity of the title acquired thereunder.</p>

<p>1. — negligence—Telephone Guy Wire.</p> <p>In case of plaintiff injured while riding at night by coming in contact with a guy wire of a telephone pole stretched in the limits of a public street and obstructing a way, formerly traveled, diverging from the street to cross a vacant block of private property, the evidence is considered and held to support findings of negligence on the part of the telephone company and absence of contributory negligence by plaintiff.</p> <p>¡2. — Damages.</p> <p>Evidence held to support a recovery of $1,200 for diminished earning capacity due to personal injury.</p> <p>3. —Damages—Mental Suffering.</p> <p>Though no witness testified that plaintiff suffered mentally, the fact might be inferred from proof of serious and painful physical injuries, and be properly submitted as an element of damages recoverable.</p> <p>4. —Pleading—Personal Injury.</p> <p>Allegations of injury to various parts and organs of plaintiff’s person are held sufficient as against special demurrer.</p>

<p>1. —Brief—Grouping Assignments.</p> <p>Assignments of error on different rulings which relate to the same subject may be grouped and submitted under a single proposition, but the practice is not commended.</p> <p>2. —Harmless Error — Overruling Exceptions.</p> <p>Error in overruling special exceptions is not ground for reversal where the trial was before the court and no evidence was admitted in support of the allegations excepted to.</p> <p>3. —Harmless Error — Absence of Bindings.</p> <p>Error in overruling a special exception is not ground for reversal where, the trial being without a jury and no separate findings of law and fact made, it does not appear that the judgment was based on the matters excepted to, it being capable of support on other grounds.</p> <p>4. —Insurance—Application—Other Insurance.</p> <p>Insured in answer to a question in the application as to insurance in other “companies and associations” answered that he was insured in one named and in no others. He had also insurance in an accident company and in fraternal and local benefit societies, which was not disclosed. Held that the language of the question, being selected by the insurer who could have made his meaning clear, should be construed most strongly against him; that it was such as could be understood by insured as not including accident, fraternal or benefit insurance; and that the answer did not necessarily avoid the policy for misrepresentation by insured.</p> <p>5. —Insurance—Suicide.</p> <p>Evidence in suit on an insurance policy not covering death by suicide considered and held not to show conclusively that the death of insured by the discharge of an automatic “safety” pistol in his own hands, and which could only be fired by pulling the trigger, was by his own voluntary act, rather than by accident.</p> <p>6. —Insurance—Demand—Penalty for Refusal to Pay.</p> <p>The penalty, in damages and attorney’s fees, imposed by article 3071, Revised Statutes, for failure of an insurance company to pay a policy, accrues only after demand. A formal demand for payment is not rendered unnecessary by the beneficiary submitting to the insurer proofs of death, nor by the insurer’s refusal to pay the policy, nor by the suit brought on the policy and for the statutory penalties.</p>

<p>Appeal from the 61st Judicial District, Harris County. Tried below before Hon. Horman G. Kittrell.</p>

<p>1. —Sale of Land — Executory Contract — Breach—Damages.</p> <p>In cases of executory contracts for the sale of land in which the vendor has no title to the land, the purchaser is not entitled to recover the difference between the contract price and the market value, but, if he has paid the purchase money, is entitled to recover it with interest from date of payment, and any special damage accruing from having b'een induced to enter into the contract. If he has not paid any part of the purchase money, and the vendor does not own the land, no recovery could be had upon the breach of the contract, but the action could only be based upon a tort for inducing thé purchaser to enter into such a contract.</p> <p>2. —Same—Pleading.</p> <p>In a suit to recover damages sfor breach of an executory contract for the sale of land which the contractor did not own, pleading considered and held subject to general demurrer. -</p>

<p>1. —Limitation—Sheriff’s Deed.</p> <p>A judgment debtor whose land is sold under execution but who retains possession for ten years thereafter, may thereby acquire title to the same as against the purchaser at execution sale.</p> <p>2. —Evidence—Citation.</p> <p>While a citation issued out of a District Court might be subject to the objection that it is not the best evidence of the allegations and admissions contained in the petition filed in the case in which the citation issued, it would not be subject to the objection that it is hearsay. The two objections are not the same.</p>

<p>1. —New Trial After Term — Pleading.</p> <p>' To entitle a party to maintain a suit for a new trial of a cause determined at a previous term of the court, it must be made to appear that the failure of the party to apply for a new trial at the term of the court at which the judgment to be set aside was rendered, was not caused or contributed to by any negligence on his part, and that he has a meritorious case, and will suffer irreparable injury unless a new trial is granted.</p> <p>2. —Same—Negligence.</p> <p>A petition in the nature of a bill of review for a new trial after the term had expired, considered, and held subject to general demurrer on the ground that it wholly failed to relieve petitioner of the imputation of negligence in not having her motion for new trial acted on during the term at which the judgment was rendered.</p> <p>3. —game—Newly Discovered Evidence.</p> <p>An application for new trial filed after the expiration of the term, on the ground of newly discovered evidence, must show that proper diligence was used to obtain the evidence on the former trial, and the affidavits of the new witnesses as to their promised testimony should accompany the application.</p>

<p>1. —Homestead—Inconsistent Use.</p> <p>Evidence stated, and held to sustain a conclusion of the trial court that a certain portion of a homestead lot had been segregated from and had ceased to be used as an adjunct to the family residence, and hence was subject to execution and sale for debt.</p> <p>2. —Same—Criterion—Principal Use.</p> <p>The principal use to which a city lot is put must be looked to in determining whether or not it should be protected as a part of the homestead. When the owner of an urban homestead builds a business house on a part of the homestead lot for the purpose of renting the same, and the house and lot are devoted to that purpose and use principally, the house and the lot occupied by it lose their homestead character and exemption.</p>

<p>1. — Chattel Mortgage — Legal Effect.</p> <p>A chattel mortgage gives to the mortgagee only a lien' on the property as security for his debt; the legal title remains in the mortgagor. This condition continues to exist until the legal title is divested out of the mortgagor by some method provided by the terms of the mortgage, or by judicial foreclosure, or by conveyance by the mortgagor.</p> <p>Í2. — Same—Sale by Mortgagee.</p> <p>A sale by the mortgagor of the mortgaged property during the existence of the mortgage vests the vendee with the legal title to the same and confers upon him all the rights of the mortgagor as against the mortgagee in a proceeding to foreclose the mortgage; any attempt thereafter on the part of the mortgagor to convey the property to the mortgagee in satisfaction of the debt, could not affect the rights of such vendee as to the possession, use and enjoyment of said property.</p> <p>3. —Same—Title and Possession — Equity.</p> <p>In a suit by a mortgagee, claiming under a bill of sale from the mortgagor, against a purchaser of the property from the mortgagor the issues being only the title to and right of possession of the property, there having been no foreclosure of the mortgage lien, but the property having been taken from the possession of the purchaser by writ of sequestration, the purchaser was entitled to recover the property or its value together with damages for deprivation of the use of the same, and he would not be required to tender the amount of the mortgage debt as a condition to the assertion of his title to the property.</p> <p>4. —Same—Foreclosure—Adjustment of Equities.</p> <p>In a suit by a mortgagee against a purchaser of mortgaged property for foreclosure of the mortgage, under appropriate pleadings the mortgagee would be entitled to recover of the purchaser or to have offset against the purchaser’s claim for the value of the property of which he had been deprived by sequestration, so much of the mortgage debt as was secured by the property in controversy, or a proper proportion of the mortgage debt when other property is included in the mortgage. If the debt be more than the value of all the property mortgaged, the purchaser could not recover anything for the value of that portion held by him, but would only be entitled to damages for the unlawful deprivation of its use prior to foreclosure.</p> <p>5. —Sequestration—Measure of Damages.</p> <p>The value of the hire of a pair of mules by the day is not the proper measure of damage when the deprivation of their use extends over a considerable length of time.</p> <p>6. —Same—Replevy—Sale.</p> <p>When a mortgagee, being plaintiff in sequestration proceedings, sells the property after having replevied the same, he thereby places it beyond his power to have a foreclosure either by judicial proceeding or a sale under power in the mortgage, and therefore must account to the holder of the legal title for the value of the property and for damages for its use, but under proper pleading he might obtain equitable relief. '</p> <p>7. —Chattel Mortgage — Removal of Property.</p> <p>The removal of mortgaged chattels from the county of the mortgagor’s . residence in which they were situated when the mortgage was executed, will ■ not affect the rights of the mortgagee though they were kept out of the county more than four months, provided the removal was without the knowledge or consent of the mortgagee; but it would be otherwise, as against an innocent purchaser for value, if the mortgagee permitted the removal.</p> <p>8. —Appeal—Statement of Facts — Motion to Strike Out — Practice.</p> <p>When, in obedience to a writ of certiorari, the original statement of facts is filed in the appellate court in lieu of a copy in the transcript, a motion to strike out the original statement on the ground that it was filed after the briefs were prepared and the paging, therefore, was not the same, will be overruled when it appears that no inconvenience can result on that account.</p>

<p>1. —Promissory Note — Partnership—Endorser—Mistake.</p> <p>In an action upon a promissory note against two parties as partners and against a third party as endorser, an answer by the endorser, in substance, that at the time he endorsed the note he did not know that the partnership had been dissolved; that in endorsing the note he relied upon the integrity of the partner who had withdrawn from the partnership; that the plaintiff knew of the dissolution of said partnership and knew that the endorser' did not know of that fact, and intentionally withheld the information for the purpose of securing his endorsement, held, not subject to general demurrer on the ground that an endorsement by mistake can not avail against a bona fide holder of a promissory note.</p> <p>2. —Notice by Mail — Presumption.</p> <p>The rule is that a letter will not be presumed to have been received by the addressee unless it is shown that it was deposited in the postoffice properly addressed and stamped, but these facts may be shown by circumstances. This rule applied in a question of notice of the dissolution of a partnership.</p> <p>3. —Charge—No Issue.</p> <p>In an action upon a promissory note executed by a partnership and endorsed by a third party, there being no evidence to sustain a finding that the plaintiffs, payees in the note, had any notice that the endorser at the time he endorsed the note did so without knowledge that the partnership had been dissolved, it was error for the court to charge the jury in effect that if plaintiffs knew that the partnership had been dissolved at the time they took the note, they could not recover against the endorser.</p> <p>4. —Promissory Note — Preexisting Debt — Valuable Consideration — Endorser.</p> <p>Where a creditor takes a promissory note from a partnership in satisfaction of a pre-existing debt, he is a holder for value; and when he does so without notice of the fact that one who endorsed the note did so without knowledge that the partnership had been dissolved, he is a bona fide holder for value and would be entitled to recover against the endorser, even though he would not be entitled to recover against the partner who had retired from the firm because he had notice of the dissolution of the partnership before the execution of the note.</p> <p>5. —Practice—Judgment Non Obstante Veredicto.</p> <p>Although a case is tried before a jury and a verdict rendered, it is the duty of the trial court, when there is no conflict in the evidence and the case is fully developed, to render judgment in favor of the party entitled thereto under the law and the evidence, notwithstanding the verdict.</p> <p>6. —Appeal—Rendition of Judgment — Practice.</p> <p>When an appellate court reverses the judgment of the trial court and there is no matter of fact necessary to be ascertained and the amount of damages is fixed, it is the duty of the appellate court to render such judgment as should have been rendered by the trial court.</p>

<p>Error from the County Court of Galveston County. Tried below before Hon. Geo. E. Mann.</p>

<p>1. — Deed—Sale in Gross — Shortage in Acreage.</p> <p>When a deed evidences a sale of land in gross or bulk with no warranty of acreage and it is not alleged that there was fraud, accident or mistake in the preparation of the deed, paroi evidence is inadmissible in defense to an action by the vendor to recover the purchase money to show that the purchaser bought the land by the acre and not in bulk.</p> <p>2. —Vendor and Vendee — Failure of Title — Pleading.</p> <p>In a suit by a vendor against the purchaser to recover part of the purchase money of land, an answer by the defendant that the plaintiff did not have possession of a certain part of the land conveyed, had never had possession of same, had never placed defendant in possession of the same, and that said part was adversely held by another under a superior title, would be subject to special exception on the ground that it failed to allege the name of the adverse claimant, or show the nature of said superior title, or the character and the length of time of the adverse holding.</p> <p>3. —Same—Covenant of Warranty — Effect.</p> <p>The general covenant of warranty in a conveyance of land applies to the title and not to the quantity of the land, hence such covenant is not broken by a deficit in the number -of acres named in the deed, even though the land may have been sold by the acre.</p> <p>'4. — Same—Deed—Sale in Bulk — Shortage.</p> <p>Where a deed shows upon its face that the land therein described is sold in bulk, and there is a material error in the quantity of the land conveyed, paroi evidence is admissible to show the shortage and that the land was in fact sold by the acre, only when fraud, accident or mistake in drawing the deed is alleged.</p> <p>5. —Verdict and Judgment — Defective Pleading.</p> <p>A verdict and judgment, however well sustained by the evidence, can not stand when based upon a pleading subject to special exception.</p> <p>6. —Promissory Note — Agreement to Pay Attorney’s Fee.</p> <p>While a stipulation in a promissory note to pay attorney’s fee is a mere contract of indemnity, still, when the holder of such note employs an attorney and contracts to pay him the amount stipulated therein for his services in collecting the note, the maker can not defeat his liability therefor on the ground that said amount is unreasonable, in the absence of allegation and proof of fraud or mistake in making the note or of fraud against the maker in the contract between the holder and Ms attorney.</p> <p>7. —Same.</p> <p>Evidence considered and held insufficient to show fraud or bad faith on the part of the holder of a promissory note in agreeing to pay an attorney the ten percent provided in a note for $1,200 as attorney’s fee for collecting the same although the maker admitted his liability except as to $75 of said amount.</p> <p>8. —game—Verdict Without Evidence.</p> <p>In the absence of testimony that a less amount than the ten percent stipulated in a note was reasonable compensation for the attorney’s services, a verdict for a less amount should be set aside.</p>

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

<p>1. —Limitation—Evidence—Case Followed.</p> <p>On the issues of the sufficiency of the evidence to support a plea of five years’ limitation, the case of Bender v. Brooks, 103 Texas, 329, followed.</p> <p>2. —Estoppel—Disclaimer of Title.*</p> <p>The issue being one of estoppel in pais, it is not essential to prove that the declarations of a supposed owner to the effect that he claimed no right, title or interest in the land in controversy, were made directly to a prospective purchaser or his agent; it is sufficient if it appears that the declarant intended or ought reasonably to have expected that his declaration would probably reach such persons in general who contemplated buying the land from another.</p> <p>3. —Same—Knowledge—Evidence. #</p> <p>Testimony which might otherwise be subject to the objection that it was hearsay might be admissible to show that a party had knowledge of a material fact.</p> <p>4. —Same—Nonaction—Charge.</p> <p>Acts, conduct or representations of a person which do not influence others to act upon them do not create an estoppel against him. Where it appeared from the testimony that a party was solely induced to buy a tract of land from one person by the declaration of another that he, the- latter, did not claim and had no title to the same, it was error for the court to submit to the jury the issue of estoppel by acts or nonaction, there being no evidence raising that issue.</p> <p>5. —Same—Mistake of Fact — Charge.</p> <p>A person may be estopped by his declarations although the same are made under a mistake of fact. Charge considered and approved.</p> <p>6. —Same—Knowlede of Fact — Rule.</p> <p>The rule that an actual knowledge of the truth is indispensible in order to create an estoppel is not universal. It applies in full force only in cases where the conduct creating the estoppel consists of silence or acquiescence. It does not apply where the party sought to be estopped, although ignorant or mistaken as to the real facts, was in such position that he ought to have known them, so that knowledge will be imputed to him. In such case ignorance or mistake will not prevent an estoppel. Nor does the rule apply to a party who has not simply acquiesced but whose affirmative acts and words have thus misled another; nor does it apply in cases of mere acquiescence where the ignorance of the real facts was occasioned by culpable negligence.</p> <p>7. —Trespass to Try Title — Flea of Not Guilty Without Evidence of Title— Charge.</p> <p>Where a defendant in trespass to try title pleads not guilty but introduces no evidence of title, the court should instruct the jury to find for the plaintiff as against him provided the plaintiff showed title in himself. In the absence of a disclaimer it is error for the court to instruct the jury that said defendant did not claim any interest in the land in controversy.</p> <p>8. —Practice—Submission of Issue.</p> <p>Where the evidence raises an issue, but is not such as to compel a finding one way or the other, it is proper for the court to submit the issue to the jury.</p>

<p>1. — Contract—Knowledge of Pacts.</p> <p>In a suit upon a promissory note given for the purchase money of growing timber, the defense being that the payor had been induced to execute the note by false representations of the payee concerning the quantity and quality of the timber, evidence considered and held to support a finding that the parties to the contract stood and dealt upon a footing of equality as to knowledge of the facts and that the contract was therefore binding.</p> <p>Í2. — Same—Sale of Timber — Description.</p> <p>A contract for the sale of timber growing upon an excess or surplus of land over and above a certain number of acres of timber previously sold to another party, considered, and held to sufficiently identify the land and timber referred to in the contract.</p> <p>3. —Appeal—Brief—Insufficient Statement.</p> <p>As a substitute for a statement of the evidence pertinent to an assignment of error, a reference in the brief to the whole of the findings of fact by the trial judge, will not be accepted as a compliance with the rule on that subject.</p> <p>4. —Same—Grouping Assignments.</p> <p>When assignments of error which refer, to different subjects are grouped and are not followed by proper statements, they will not be considered on appeal.</p>

<p>1. —Overflow—Damages—Pleading.</p> <p>Petition in an action for injury to growing crops by causing overflow of the premises sufficiently alleges the damages where it shows the amount in which the value of the yield of the crops was lessened thereby.</p> <p>2. —Same—Charge.</p> <p>A statement of plaintiff’s claim in the charge as one for present injuries to growing crops, plaintiff claiming decrease in probable yield, was not misleading, where the jury were also referred to the petition for a full statement of the cause of action. If a more complete statement was desired a charge thereon should have been prepared and requested.</p> <p>3. —Injury to Crops — Landlord and Tenant — Parties.</p> <p>In an action for injury to growing crops which a tenant was raising on shares, though the landlord is not a necessary party, he has not been held an improper one, and if he were, his joinder as plaintiff would be error not prejudicial to defendant, and not ground for reversal.</p> <p>4. —Crowing Crops — Sale After Injury.</p> <p>The sale by a tenant of his interest in a growing crop after it has been damaged by overflow by another’s wrongful act does not transfer his right of action for the damages nor present an obstacle to his recovery,.</p>

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

<p>Appeal from the County Court of Travis County. Tried below before Hon. R. E. White.</p>

<p>1. —Vendor and Vendee — Innocent Purchaser — Proof.</p> <p>■As against the owner of the equitable title to land, a purchaser from the holder of the legal title, in order to establish a plea that he was a purchaser in good faith has the burden of proving, outside of the recitals _ in his deed, that he paid value for the land and that he purchased without notice, actual or constructive, of the outstanding equitable title.</p> <p>2. —Same—Actual Possession — Notice of Title.</p> <p>Actual possession of land by a tenant is notice of the title under which the tenant holds. This rule applied as against a plea of innocent purchaser.</p> <p>3. —Statute of Brands — Agreement to Acquire land.</p> <p>An agreement between two or more to acquire land for their joint benefit is not within the statute of frauds and therefore need not be in writing.</p> <p>4. —Trespass to Try Title — Equitable Title.</p> <p>A prayer to cancel the deed under which a defendant claims in trespass to try title is neither necessary nor proper when the purpose of the suit is to establish in plaintiff an equitable title to the land in controversy.</p> <p>5. —Vendor and Vendee — Undivided Interest — Partition.</p> <p>When the owner of an undivided interest in land conveys several tracts by metes and bounds aggregating, however, less than the entire interest of such owner, on final partition between the several owners the tracts conveyed by metes and bounds should be allotted to the respective purchasers if it can be done without prejudice to the other joint owners.</p>

<p>1. —Independent Executors — Distribution—Surrender of Control.</p> <p>When executors empowered to act independently of the Probate ■ Court make a distribution of any portion of the estate and deliver possession to the heirs or devisees, they lose all control or dominion over that portion and can not thereafter administer it for the benefit of creditors.</p> <p>2. —Same—Judgment—Case Stated.</p> <p>The widow of a decedent and another being joint executors of his estate, independent of the control of the Probate Court, they and her children, his heirs, were sued by his children by a former wife seeking to recover their interest as heirs of decedent. By consent of all parties a distribution of the estate between the heirs was agreed to and judgment entered setting aside to each specific property as his share and releasing the interest of the estate and of the other heirs therein, certain of the property being so allotted to the widow and her children jointly as their share of the estate. A year later the executors conveyed a tract of this land, set apart to the widow and her children, to others, in consideration of a credit on a debt of the decedent which had been reduced to judgment. Held that the agreement and judgment effected a final distribution of the estate, and that thereby the executors had lost the power to administer it for creditors, and their deed did not convey the title of the heirs to whom the tract had been set aside by the consent decree.</p> <p>3. —Same.</p> <p>The distribution of the estate by consent decree, if final as to some of the parties, must be final as to all. The executors could not be divested of control without their consent; but, consenting to the distribution, they could not resume control of a part of the property, for the purpose of paying debts without injustice to the party to whom it was awarded, though the latter would take the same subject to the rights of creditors of the estate to call on him for contribution.</p> <p>4. —Executors—Relinquishment of Control — Intent.</p> <p>The intent of the executors to relinquish control of the estate by consenting to its distribution must be determined from the legal effect of their acts at the time. Their attempt, a year later, to resume control by~mortgaging or conveying the land, could not alter the effect, and their intent must yield to the legal result of what they did.</p> <p>5. —Judgment—Pleading—Consent.</p> <p>A judgment by consent cures all errors except those resulting from a lack of jurisdiction in the court, and those also, so' far as jurisdiction can be conferred by consent. Such judgment is not rendered void by the fact that the relief afforded goes beyond what was sought by the pleadings,</p> <p>6. —Executors—Consent to Distribution.</p> <p>The independent executors having a right to consent to distribution of the estate, such distribution by a decree entered in pursuance of an agreement by them and the heirs, was effective without reference to the validity of the decree as a judgment.</p> <p>7. —Executor—Deed—Interest as Heir.</p> <p>A conveyance by an executor who is also a joint owner of the property will be sufficient to pass his individual interest, though ineffective in his representative capacity.</p> <p>8. —Judgment—Joint Intent.</p> <p>A judgment by consent distributing lands of an estate to the widow and her two children jointly in fee simple gave each an equal undivided one-third interest therein, irrespective of their rights under the will, which was eliminated from consideration by the consent decree.</p> <p>ON MOTION FOB BEHEARING.</p> <p>9. —Heirs—Recovery of Land — Debts Discharged.</p> <p>Where heirs recover land of their ancestor, conveyed without authority by his executors, they should be required to refund so much of the consideration paid as went to discharge debts of the estate subject to which they inherited.</p>

<p>Trial Without Jury — Right to Conclusions of Fact and law.</p> <p>When a case is tried without a jury, it is reversible error for the judge to overrule a motion seasonably made by the losing party requesting him to file his findings of fact and conclusions of law, and to refuse to comply with said motion.</p>

<p>Contract — Bond—Sale—Certainty—Mutuality.</p> <p>A contract relating to the purchase and sale of beer, secured by bond by the purchaser and sureties to make due payment for goods bought thereunder, though the agreement was unenforcible while executory, because not binding the seller to sell or the purchaser to take any definite quantity, became, when executed, valid as to whatever had been delivered and received thereunder. The surety could not defend against such liability on the bond because the contract between his principal and the seller was invalid, so long as it was merely executory, for want of certainty and mutuality.</p>

<p>Evidence — Shop Books — Contract.</p> <p>An entry on the books of an architect, made by his employe, as to the terms of an order for plans for residences, not made in the presence of the party giving the order nor with the purpose by the parties of preserving a written memorandum of their agreement, is nót admissible, in favor of the architect, as evidence of the terms of the contract. The rule admitting “shop books” in evidence is confined to entries of goods sold and delivered or of work and labor performed.</p>

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

<p>1, —Written Contract — Failure to Read — Insufficient Excuse.</p> <p>The law holds parties bound by a written contract, and in order to be relieved from its terms and provisions a party must show some legal excuse for failing to read and understand it before signing it; evidence considered and held insufficient to show fraud, accident or mistake in the execution of a contract concerning the purchase and operation of machinery, and insufficient to relieve the purchaser from compliance with the terms and stipulations therein contained.</p> <p>2. —Same—Breach—loss of Profits.</p> <p>The seller of machinery bought for the purpose of ginning cotton for the public would be liable for the loss of profits by the purchaser by reason of the failure of the seller to properly place and arrange the machinery for operation, in accordance with his contract.</p>

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

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

<p>1. —Purchase of land — Paroi Trust.</p> <p>Where G made a trade with S to loan and advance to S the purchase price of a tract of land which was to be sold at public outcry, and S agreed to execute to G his interest bearing notes for said money, and G, as the agent of S, attended the sale and bought the land for S, taking the title in his own name, paying for the same money which he had agreed to loan S, then G took the title in trust for S.</p> <p>2. —Same—Evidence.</p> <p>The laws of this State do not prohibit the declaration or creation of trusts, or their proof, by paroi.</p>

<p>1. —Telegraph—Negligence—Defense—Failure to Repeat.</p> <p>The failure of the sender to have a telegraph message repeated does not preclude a recovery of damages caused hy the negligence of the telegraph company in changing the address of the message when such change causes the nondelivery of the message and consequent damages.</p> <p>2. —Plea—Verification.</p> <p>An affidavit to a plea that the same is true “according to the best information and belief” of the affiant, although defective, will be taken as a sufficient verification in the absence of a special exception.</p> <p>3. —Telegram—Negligence—Claim for Damages — Ninety Days Limitation.</p> <p>A stipulation in a contract for the transmission of a telegram, which required notice of any claim for damages to be given within ninety days from the filing of the message, considered in connection with the evidence, and held to be unreasonable as matter óf law, and therefore a failure of the sender to give such notice would not affect his right to recover.</p>

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

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

<p>1. —Eminent Domain — Damages.</p> <p>One whose land is condemned for a public road is entitled to damages, in addition to the value of the land taken, for depreciation in the value of the remainder of the tract by the opening of the road through it.</p> <p>2. —Same—Purpose for Which. Used.</p> <p>The purpose for which land is used may be considered in determining the damages to the part not taken by the opening of a public road through it; but so, also, may be the purposes for which it is adapted. If it was in use for a pasture, and the road depreciated its value for that purpose, but it was also adapted for agriculture, and its value for that purpose was enhanced, nothing was recoverable for damage to the part not taken, where its market value generally was enhanced, not depreciated, by the opening of the road.</p> <p>3. —Case limited.</p> <p>The rulings in Eastern Texas R. Co. v. Scurlock, 75 S. W., 367, limited, distinguished and explained.</p> <p>4. —Charge.</p> <p>A requested instruction is properly refused when argumentative in form.</p> <p>5. —Eminent Domain — Condemnation—Collateral Attack.</p> <p>Complaint of the introduction of evidence that third parties had guaranteed payment of the damages for condemnation of land for a public road, on the ground that the propriety of opening it should be determined independently of such fact, was not ground for the reversal of the judgment of the County Court awarding damages for its opening, it being in the nature of a collateral attack on the judgment of the Commissioners’ Court ordering the road to be opened, and no issue as to the necessity for condemnation being involved.</p>

<p>Appeal from the 41st Judicial District, El Paso County. Tried below before Hon. A. M. Walthall.</p>

<p>Error from the 61st Judicial District, Harris County, Texas. Tried below before Hon. Norman G. Kittrell.</p>

<p>Error from the 57th Judicial District, Bexar County. Tried below before Hon. A. W. Seeligson.</p>

<p>1. —Appeal—Filing Statement of Facts and Bills of Exception — Statute of 1909 Construed.</p> <p>A cause was tried on Nov. 1, 1909; the motion for new trial was overruled on Dec. 1, 1909; the term of the court began on Oct. 4 and ended on Dec. 4, 1909; on Feb. 4, 1910, an order was made extending the time in which the statement of facts and bills of exception could be filed until Feb. 7, 1910; the bills of exception were filed on Feb. 4, and the statement of facts on Feb. 5, 1910. Held, the judgment became final when the motion for new trial was overruled; under the provisions of the Act of 1909 (Acts 1909, pp. 374-379), the order granting an extension of time for filing the statement of facts and bills of exception must be made and entered of record, and (the term continuing more than eight weeks) this must be done before the expiration of the thirty days from the date of the final judgment; hence a motion by appellee herein to strike out the statement of facts and bills of exception should be granted.</p> <p>2. —Jurisdiction—Order at Subsequent Term.</p> <p>Without express statutory authority for such action, courts can not, at succeeding terms, make orders affecting judgments rendered at former terms, except perhaps to correct some omission or error in the minutes of the former term.</p> <p>3. —Appeal—Improper Evidence — Practice.</p> <p>Without reference to the merits of assignments of error based upon the admission of evidence, the assignments will be overruled when it is manifest that the evidence was immaterial and its admission could not have injured appellant.</p> <p>4. —Trial—Proper Argument.</p> <p>In a suit against a railroad company for damages, counsel for plaintiff have a right in argument before the jury to call their attention to the fact that a witness for the defendant was hired and paid a salary by the defendant and could be brought into court to testify in its behalf.</p> <p>5. —Appeal—Defective Bill of Exception.</p> <p>An assignment of error which refers to several bills of exception to the language of opposing counsel during the trial, hut which fails to indicate the language complained of, will not be considered.</p> <p>6. — Trial—Misconduct of Juror — Harmless, when.</p> <p>A juror, after the argument in a case had begun, told a person not on the jury that he thought the plaintiff was badly injured and ought to have all he sued for; the person addressed did not discuss the case with the juror nor was it made to appear that the conversation had any effect on the verdict of the jury. Held, however reprehensible the conduct of the juror, it was not sufficient cause for reversing the judgment.</p>

<p>1. —Contract of Indemnity — Validity.</p> <p>Where one wrongdoer has contracted to indemnify another for any damages arising from the wrongful act, the party indemnified may recover over against the party who contracted to indemnify.</p> <p>2. —Same—Case Stated.</p> <p>A contract between the" Pullman Company and a railroad company by which the former, for a valuable consideration, agreed to indemnify the latter against any loss resulting from the injury or death, in consequence of any accident or casualty, of any employee of the former while serving in the line of his duty, would be valid and binding. Such a contract is not contrary to public policy as being a contract of indemnity against negligence.</p> <p>3. —Personal Injury — Performance of Duties — Charge.</p> <p>In a personal injury case the court conditioned the right of the plaintiff to a recovery on the facts, among others, that she was in the employment of the defendant and was at work in one of its cars at the time she was injured. Held, the contention that the court erred in not instructing the jury that the plaintiff must have been in the discharge of her duties as an employee at the time she was injured, was without merit when considered in the light of the evidence and a special charge given by the court at the request of the appellant.</p> <p>4. —Appeal—Favorable Charge. •</p> <p>An appellant can not complain of a charge which was practically in its favor and which added unnecessarily to the burden of the appellee in making her case.</p> <p>5. —Practice—Withdrawal of Charge.</p> <p>An appellant will not be heard to say that it was prejudiced by the action of the trial court in withdrawing an erroneous charge which had been at first given and read to the jury at appellant’s request.</p> <p>6. —Appeal—Brief—Violation of Rules.</p> <p>Assignments of error which are not presented in the briefs in accordance wih the rules regulating that subject, will not be considered.</p>

<p>Appeal from the County Court of Wise County. Tried below before Hon. C. V. Terrell.</p>

<p>1. —Carrier—Shipment of Corpse — Undertaker’s Charges.</p> <p>Evidence considered and held insufficient to show an agreement by an express company to discharge the undertaker’s claim for which the corpse was held and to ship the body to the widow for interment at the place of residence, collecting such charges on delivery.</p> <p>2. —Same.</p> <p>No duty rested on a carrier by law to discharge or guarantee payment of a claim of the undertaker holding possession of a corpse, in order to obtain it for shipment to relatives for interment. If the undertaker refused to surrender possession for shipment with charges collectible on delivery, it was the duty of the shipper to arrange them in order that the carrier might get possession, and until this was done the latter incurred no liability for delay of the shipment.</p> <p>3. —Contract—Evidence—Custom.</p> <p>Where no contract by defendant was shown, proof of a custom to make such contracts was irrelevant.</p>

<p>1. —Damages—Pleading—Time Lost by Injury.</p> <p>Plaintiff could not recover for loss of time from injuries to the person, though alleging specifically the nature of such injuries, where the petition also specified the elements of damages claimed, and mentioned only physical and mental pain and physician’s bills.</p> <p>2. —Damages—Proof of Permanent Injury.</p> <p>Evidence held insufficient to show permanent injury or justify its submission as a possible basis far damages.</p> <p>3. —Double Damages — Loss of Time — Permanent Disability — Charge.</p> <p>An instruction submitting, as separate elements of damages for injury to the person, loss of time and permanent disability, criticised, but held not ground far reversal as directing award of double damages.</p>

<p>Personal Injuries — Evidence—Accident.</p> <p>In a suit by a railroad freight brakeman for damages for personal injuries caused by falling between two of the cars when they were uncoupled and separated as he was in the act of stepping from one to the other, evidence considered and held insufficient to show negligence on the part of the defendant’s employees contributing to the plaintiff’s injuries, but that said injuries were chargeable to the dangers and risks incident to the service in which he was engaged, and hence the defendant was not liable.</p>

<p>1. —Carrier of Live Stock — Damages—Evidence.</p> <p>In the absence of evidence showing that there was no market value for animals at the place of their destination, testimony as to the price paid by the owner of such animals at the point of shipment is not admissible for the purpose of discrediting the owner’s testimony as to what would have been the value of the animals at their destination but for the injuries they sustained during transportation.</p> <p>2. —Same—Measure of Damage.</p> <p>The proper measure of damage to live stock during transportation being such depreciation in their market value at destination at the time of their arrival as was occasioned by the carrier’s negligence, the court properly refused a special charge giving as the measure of damage the expense necessary to restore the stock to their normal condition.</p> <p>3. —Practice—Charge—No Issue.</p> <p>It is proper for the trial court to refuse to submit an issue which is not raised by the evidence,- or which has been already presented by the charge of the court. Rule applied.</p> <p>4. —Shipper—Claim for Damages — Suit for Larger Amount.</p> <p>When the amount of the verdict of a jury against a railroad company for damages to a shipment of livestock is supported by the evidence, the fact that the owner, shortly after the shipment, presented a claim for a less amount, is not sufficient cause for setting the verdict aside.</p>

<p>1. —Damages—Death of Son — Probable Pecuniary Aid — Evidence.</p> <p>In a suit by parents against a railroad company for the negligent killing of their son, the testimony of one of the parents as to a conversation with the son shortly before his death in which the son declared his intention to assist plaintiff in the future by gifts of money, was competent evidence.</p> <p>2. —Same—Amount of Aid — Charge.</p> <p>In a suit by parents for the negligent killing of their adult married son, a charge requested by defendant upon the issue of the financial ability, willingness and probability of the son contributing to the support of plaintiffs and as to the amount of such aid, considered, and held properly refused because upon the weight of the evidence and misleading, and it imposed a greater burden upon the plaintiffs than required by law in establishing the amount of aid which they had a right to expect from their said son.</p> <p>3. —Practice—Repeating Charges.</p> <p>It is proper for the trial court to refuse to give a special charge which is in substance the same as a special charge already given. Special charges upon the subject of the financial ability of a son to contribute to the support of his parents and the probability of his doing so, considered, and held substantially the same.</p> <p>4. — Death of Son — Damages—Certainty of Proof.</p> <p>In actions by parents for the negligent killing of their adult married son, and cases of like character, the evidence can not furnish the measure of damages with that certainty and accuracy with which it may be done in other cases, and hence the amount must of necessity be left to the sound discretion of the jury and their discretion will not be interfered' with unless it is made to appear that their verdict was the result of some improper motive or influence.</p>

<p>1. —Exemption—Homestead Defined.</p> <p>By the Constitution of this State there is exempt to the head of a family but one homestead, which, in a city or town, may consist of lot or lots contiguous to or separated from each other, provided they are put to such uses as contribute to the enjoyment of the home; and one or more of such lots may be devoted to the calling or business of the head of the family.</p> <p>2. —Same—Business Homestead.</p> <p>The business homestead must be confined to one place; separate and disconnected lots can not be appropriated as so many different places of business, nor for purposes auxiliary to the main business. The exemption applies to only one business and one location.</p> <p>3. —Same.</p> <p>While lots separated from the residence homestead are exempt from forced sale if they are put to such uses as contribute to the enjoyment of the home, and while the business homestead may be established upon a lot or lots not contiguous to the residence homestead, yet the business of the head of the family must be confined to one place and can not be conducted upon several separate and disconnected lots.</p> <p>4. —Same—Case Stated.</p> <p>A defendant in execution was a school teacher, a married man, the head of a family, and owned a college building situated in a town; the college grounds and. campus proper consisted of a tract of four acres; on a different lot, which was separated from the college grounds and campus by a street, were three large dormitories belonging to said defendant and used by him to room and board a large number of pupils who attended his school; defendant and his family resided in one of said dormitories and took their meals in another, with the pupils boarded by him. Defendant owned six other lots, all of which were separate from the college lot and the dormitory lot above mentioned; on some of said six lots was situated another large dormitory in which a number of defendant’s pupils slept; on another lot 'was a house partly occupied by a gardener who cultivated a garden on said lots from which vegetables were used to supply defendant and his family and the pupils boarding with, him; still other of said lots were used as a baseball ground. Held, only the lot on which was situated the college building and campus, and the lot on which was situated the dormitory occupied by defendant and his family, and one of the lots on which was situated the vegetable garden, were exempt as homestead from execution and forced sale.</p> <p>5. — Homestead—Mere Intention Insufficient.</p> <p>Mere intention to make a tract of land a part of the homestead is not sufficient to give it the homestead character. Some act must be done evidencing an intention to use it for or in connection with the home place for— the comfort or convenience of the family, or as a place of business for the head of the family. Evidence stated and held insufficient to make a certain lot a part of a homestead.</p>

<p>Appeal from the District Court of Gray County. Tried below before Hon. F. D. Greever.</p>

<p>1. —Personal Injuries — Public Thoroughfare — Backing Train.</p> <p>In a suit by a minor between two and three years of age for the loss of a leg caused by being run over by a railroad train which was being backed over a public thoroughfare near a railroad station, pleading and evidence considered and held sufficient to support a verdict finding in effect, that the brakeman and other employees of the defendant company operating the train did not exercise ordinary care to see that the track was clear before backing the train, and that had such care been exercised the plaintiff would have been discovered upon the track in time to have averted the injury.</p> <p>2. —Same—Infant—No Contributory Negligence.</p> <p>It may be held as matter of law that a child two years and seven months old was not guilty of negligence or contributory negligence in being upon a railroad track under the circumstances shown in this case.</p> <p>3. —Railroad Company — Duty of Lookout.</p> <p>The operatives of a railway train owe the general duty of lookout not only to those who are of right upon the track but to trespassers as well. If in this the operatives are derelict, a recovery will be denied to a trespasser not because the railway company is acquitted of wrong but because the trespasser’s own want of care intervened.</p> <p>4. —Same—Injury to Infant — Charge.</p> <p>In the ease of an infant run over and injured by a railroad train, charge of the court as to the duty of the operatives of the train, considered and approved, and a charge requested by the defendant on the doctrine of discovered peril disapproved because it ignored the duty of the railroad operatives to keep a lookout.</p> <p>5. —Personal Injuries — Future Suffering.</p> <p>Pleading and evidence considered and held to warrant a charge upon future physical suffering in an action for personal injuries.</p> <p>6. —Same—Infant—Excessive Damages.</p> <p>A verdict for $30,000 damages for the loss of a foot by an infant between two and three years of age, held excessive under the evidence in this case, and a remittitur of $10,000 required.</p>

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

<p>1. — Order of Pleading — Misjoinder.</p> <p>After defendant has answered by general demurrer and plea to the merits, it is too late to file special exceptions to the petition on the ground of misjoinder of parties and causes of action.</p> <p>Z. — Joinder of Actions.</p> <p>Recovery of damages for breach of contract and for tort may be sought in the same action, where both grow out of the same transaction.</p> <p>3. —Joinder of Parties.</p> <p>To avoid multiplicity of actions, connecting lines of railway may be joined in a suit between the consignor and consignee for the price of goods damaged by their negligence in transportation, where it is doubtful to which party they are liable.</p> <p>4. —Evidence—Expert and Opinion.</p> <p>A witness properly qualified by experience as a shipper by rail between certain points may testify as to the usual time for transportation, on the issue of negligent delay of the goods by the carrier.</p> <p>5. —Same.</p> <p>So a witness experienced in shipment of perishable fruit may testify as to the effect of leaving open the vents in a fruit car in warm weather, and in freezing weather, in answer .to hypothetical questions embracing substantially, though not precisely, the facts involved in the case- on trial.</p> <p>6. —Charge—Carrier—Perishable Fruit — Loss by Inherent Defect.</p> <p>A charge excusing a carrier from liability for damage to fruit in transportation if due to inherent defect is held properly refused: (1) because the evidence did not present such issue; (2) because the charge given covered the issue so far as involved; (3) because the charge requested ignored the issue as to negligence in transportation.</p> <p>7. —Carrier—Messenger Accompanying Shipment — Pleading.</p> <p>The carrier is not excused from proper care of perishable fruit by a contract between consignor and consignee that a messenger of the former shall accompany and care for the shipment, and by default of such messenger in its care; and pleading such agreement in the action between consignor and consignee does not raise the issue as to such agreement between the consignor and carrier relieving the latter from duty to care for the shipment.</p> <p>8. —Carrier—Connecting Lines — Through Shipment — Limiting Liability — Federal Statute.</p> <p>A. contract by a railway for interstate transportation of goods, consigned over connecting lines and for a through rate to destination, was a through contract under the terms of the Act of Congress óf June 29, 1906; and the initial carrier, though the bill of lading limited its liability to its own line, was liable for damages by the negligence of connecting lines.</p> <p>9. —Briefs.</p> <p>An assignment of error not submitted as a proposition nor followed by appropriate proposition and statement will not be considered.</p> <p>10. —Carriers—Delay—Diversion—Strikes—Charge—Pleading.</p> <p>A charge excusing diversion of a shipment to another line by reason of the existence of a strike on the road over which it was routed by the shipper, was properly refused where the pleading sought to excuse delay only, not diversion, by its allegations of necessity arising from the strike.</p> <p>. 11. — Carrier—Deviation—Connecting Lines.</p> <p>The initial carrier of an interstate shipment is liable under the Act of Congress of June 29, 1906, where a connecting line diverts the shipment to another road than that over which it is routed, and the property is delivered in a damaged condition, irrespective of negligence in its transportation. He is responsible for the acts of the connecting line, and becomes an insurer against damage by the deviation.</p> <p>12. —Carrier—Negligence—Perishable. Property — Charge.</p> <p>Evidence of delay of shipment and failure to attend to ventilation of fruit ear held sufficient to justify refusal of peremptory charge' relieving the delivering carrier from liability for damage to a consignment of fruit.</p> <p>13. —Same—Degree of Care.</p> <p>Refusal of a requested instruction limiting the liability of the delivering carrier for negligence in transporting perishable property to damage resulting from a lack of ordinary care, held ground for reversal.</p>

<p>1. —Brief—Assignment as Proposition.</p> <p>An assignment of error simply that the court erred in directing the jury to allow the 'defendant a certain amount as damages, on account of losses sustained by him under a contract sued on and which were plead by him in reconvention, is not in itself such a proposition as the rules for the preparation bf briefs contemplate, nor such as to warrant the submission of the assignment as a proposition.</p> <p>2. —Same—Reforming Judgment — No Cross-Assignment.</p> <p>In the absence of a cross-assignment of error, the Appellate Courts can not reform a judgment of the trial court so as to increase the amount of the same in appellee’s favor.</p> <p>3. —Contract—New Contract — Validity.</p> <p>In the absence of evidence of fraud or that the party entering into a new contract, whereby changes were made in a prior contract, did not know and understand the provisions of the new contract at the time he signed it, the new or second contract will determine the rights of the parties; and this, though there was no new consideration for the second contract, provided the first contract was unperformed at the time of the change.</p> <p>4. —Same—Sale of Wagons — Limited Warranty.</p> <p>A contract for the sale of a certain number of “spreading wagdns” contained a warranty that they would do the work well if properly operated by competent persons, and stipulated that if the purchaser did not notify the seller to the contrary in writing within five days from first day’s use, the wagons should be considered satisfactory. Held, said stipulation was binding, and a failure to comply therewith would be conclusive of the question as to the wagons being satisfactory.</p> <p>5. —Appeal—Briefs—Violation of Rules,</p> <p>Assignments of error which do not conform to the rules prescribed for briefing cases, or which are submitted as propositions when in fact not such, or which are followed by statements which consist of general references to statements under other assignments which themselves refer to various other statements, will not be considered on appeal.</p>

<p>1. —Possession—Notice.</p> <p>Possession by a tenant was notice of the rights of those under whom the tenant held, though a conveyance from them, void as being an attempted incumbrance of their homestead, was. on record. Eylar v. Eylar, 60 Texas, 315, and cases following it distinguished.</p> <p>2. —Homestead—Deed—lien—Innocent Purchaser — Power of Sale.</p> <p>A husband joined by his wife conveyed the homestead by a deed, absolute in form but void as constituting an attempted mortgage, reserving a vendor’s lien for a purchase money note which he sold to an innocent purchaser. His grantee, carrying out the scheme to fix an incumbrance on the homestead, conveyed the land to another, reserving also a lien for a purchase money note, and this was substituted for the first note in the hands of its holder. He also executed a deed to a trustee with power of sale to secure this substituted note. The holder of the note had constructive notice of the rights of the first grantors by reason of the invalidity of the attempted incumbrance of their homestead at the time this trust deed was executed. * The land was sold under the power and bought in by the holder of the .note pn his debt. Held, that such purchaser, though having a right to enforce the vendor’s lien innocently bought, could not claim title as purchaser at the sale under the powers of the trust deed, as against suit of the wife to recover the land as her homestead unlawfully conveyed.</p> <p>3. —Power of Sale — Notice.</p> <p>A trust deed giving power to sell land after giving notice “as required in judicial sales,” authorizes sale only on the notice required by the law in existence at the time it was executed. The power to sell rests on the contract, and this was not affected by a subsequent change of the law as to the notice required for judicial sales.</p> <p>4. —Same—Change in Law.</p> <p>A trust deed required notice of sale to tbe given by the trustee “as required in judicial sales.” This notice, at the time, was by advertisement in a newspaper. Subsequently the law was changed by substituting notice posted in public places. With this law in force, a statute was passed requiring all sales of land under such powers to be on notice “as now required in judicial sales.” Held, that the parties could contract for such notice in addition to that required by the law as they thought proper; that they had contracted for notice by publication; that this, in addition to that then required by the law, was necessary to the execution of the power of sale.</p> <p>5. —Limitation—Recovery of Mortgaged Property.</p> <p>An action in trespass to try title to recover the homestead on which plaintiffs had attempted to place an incumbrance under the form of an absolute deed, was an action to recover the land, not one in equity to cancel the deed and redeem, and. was not subject to the limitation applicable to the latter form of action.</p>