Volume 89 — Texas Reports

<p>1. Interstate Shipment.</p> <p>When a commodity has been delivered to a common carrier to be transported on a continuous voyage to a point beyond the limits of the state where delivered, the character of interstate or foreign commerce attaches thereto: e. g. cotton shipped on a barge at Houston, for carriage and delivery to the Mallory line of steamers, to be carried to New York, thence to be shipped to the owner at Liverpool, although the liability of the barge owner Is limited to its delivery to the Mallory line at Galveston. (Pp. 4 to 8.)</p> <p>Z. Same.</p> <p>It is not necessary that all the carriers engaged in an interstate or foreign shipment shall be parties to the contract of shipment for the entire route. The character of the shipment Is not affected by the fact that the Initial shipment was but for a short distance, and the liability of the initial carrier limited until the delivery to the connecting carrier In the route. (P. 8.)</p> <p>3. Houston Direct Navigation Company—Charter—Common Carrier.</p> <p>By section 10 of the charter of the Houston Direct Navigation Company it is provided that its barges, etc., used in its business “shall be subject in the transportation of freight to the laws applicable to common carriers.” This does not have the effect to make the corporation subject to state control when engaged in interstate commerce; its liability is to he determined under the law which may he applicable to the character of commerce in which it may be engaged at the time. (P. 9.)</p> <p>4. Same—May Limit Liability.</p> <p>The Houston Direct Navigation Company, carrying cotton to Galveston in part of its route to Liverpool via New York, is liable as a carrier under the laws of Congress, or the common law so far as Congress has made no provision therefor, and not under the statutes of the state of Texas, which forbid the carrier to limit its liability as at common law. It was error to disregard a freight contract which had such limitations. (P. 9.)</p>

<p>Error to Court of Civil Appeals for First District, in an appeal from Liberty County.</p> <p>This was a suit in trespass to try title, brought in the District Court of Liberty County, Texas, September 11, 1881, by Sam Houston, Jr., Temple Houston, Nettie Bringhurst and her husband, W. L. Bringhurst, Maggie H. Williams, widow; Nannie E. Morrow and her husband, J. C. S. Morrow, Mollie M. Morrow, A. J. Houston and W. B. Houston, as surviving children and only heirs at law of Sam Houston, Sr., against A. W. Desmuke, Wharton Branch and Sarah Davis, M. M. Martin and Jennie K. Carnes, as the heirs at law of James Davis, deceased, to recover certain four leagues of land situated in Liberty County, on both sides of the Trinity Biver, and known as the Santos Coy four-league grant in said county, describing the same in their petition by metes and bounds.</p> <p>On August 28, 1882, Wharton Branch and A. W. Desmuke filed their answer in which they disclaimed all interest in the said four-league grant, save and except that part thereof in conflict with the B. M. Green survey or league, in said Liberty County, amounting to about 3,542 acres, and as to the portion so in conflict, they pleaded “General Denial,” “Not Guilty,” statutes of limitation of three, five and ten years, and stale demand.</p> <p>Pending the suit, A. W. Desmuke died intestate, when Fannie Borrow, Delphine Bay Kendall, John C. Desmuke, Thomas Desmuke, Josephine Applewhite, Nannie Gilford, Friend Desmuke and Mary L. Desmuke became defendants in his stead as his next of kin and only heirs at law. James Davis also died pending the suit, and his heirs, Sarah Davis, M. M. Martin and James K. Carnes, who were made defendants, answered setting up a claim to a specific tract of 804 acres out of the southwest corner of the B. M. Green league, which was in conflict with the said Santos Coy four-league grant, and pleaded as to such parcel “not guilty” and the several statutes of limitation of three, five and ten years.</p> <p>On April 13, 1883, Albert G. Dunn, John W. Schute, Annie E. Mills, Wm. D. Schute, Mary E. Hamilton, Ann L. Horton, W. D. Dunn, Williamson Glover, Isora Demoville, A. Y. Glover, James D. Glover and M. A. Bishop filed their petition in intervention in the suit, against the plaintiffs and the defendants, seeking a recovery of an undivided one-third interest of and in the said Santos Coy four-league grant, describing the said lands by the same metes and bounds or field notes as those set forth in the plaintiffs’ petition as description thereof, and claiming such interest as the next of kin and only heirs at law of one Jno. B. Dunn, deceased. These interveners also alleged that McKesson & Bobbins, a partnership composed of John McKesson and D. C. Bobbins, were claiming an interest in said lands, and prayed that they be made parties defendant. Subsequently, McKesson & Bobbins appeared, and, making common cause with the heirs of A. W. Desmuke, filed their joint answer setting forth that a disclaimer had previously been filed by the said A. W. Desmuke and Wharton Branch in September, 1882, to all that part of the four leagues of land mentioned not in conflict with the B. M. Green’s league or survey, and further answering by pleas of “not guilty and the several statutes of limitations of three, five and ten years,” and claiming to own, together with the said Wharton Branch, as tenants in common, that part of the said B. M. Green league of land which conflicted with the said Santos Coy four-league grant of land.</p> <p>On August 26, 1893, S. B. Perryman, of counsel in the cause for the plaintiffs, filed therein his petition in intervention on behalf of himself and George W. Davis, setting up a claim to an undivided one-fourth of whatever part or portion of the said Santos Coy four-league grant might on final hearing of the cause be adjudged to belong to the said plaintiff's, except the plaintiff Temple Houston, and praying that such one-fourth part be decreed to him, the said Perryman, under and by virtue of an alleged contract, of date May 23, 1883, between the said plaintiffs, except Temple Houston, and himself, for legal services rendered and to be rendered in the prosecution of the suit in their behalf.</p> <p>Pending the cause in the lower court, W. J. Montgomery, John Vanier, W. F. Hardin and Geo. W. Davis, were made parties defendant. W. J. Montgomery answered, disclaiming all interest in the subject matter of controversy. Vanier answered, setting up claim to a specific tract of 160 acres, part of the said four-league grant, and as to such tract pleaded not guilty and the ten years statute of limitation. W. F. Hardin answered, claiming that he had acquired the interests of the plaintiffs Sam Houston, Jr., and Nettie Powell Bringhurst at execution sale before this suit, and of the plaintiffs Maggie Williams and Wm. B. Houston, through Geo. H. Davis, and defended by pleas of not guilty and of the several statutes of limitation. He also claimed that he had acquired the interests of all the plaintiffs, pending the suit, by purchase at sheriff’s sale for costs of court; and Geo. W. Davis defended by pleas of not guilty and the several statutes of limitation.</p> <p>By amended pleadings filed in 1894, Wharton Branch alleged that on August 25, 1883, he had purchased from the plaintiffs, Nettie Bringhurst, Temple Houston, W. B. Houston, Sam Houston and M. W. Morrow, for valuable consideration, and that they had by deed duly executed conveyed to him their respective interests in the said four-league grant of land. He also, in reply to W. F. Hardin’s claim to the W. B. Houston interest, which had been subsequently to the conveyance to Branch transferred by Houston to Geo. W. Davis and by Davis to Hardin, offered to pay into court the $250 which was the consideration for the deed from W. B. Houston to Branch for that interest, and which was unpaid, for the benefit of whomsoever the court should adjudge entitled to it.</p> <p>The cause was tried before the court without the intervention of a jury, and the court rendered therein its judgment on decree in substance as follows, based upon its conclusions of facts and of law filed in the cause: In favor off defendant John Vanier for 160 acres out of the said Manuel de los Santos Coy four-league grant, and that he have and recover of the plaintiffs, interveners and cross-claimants Ms costs in that behalf expended; in favor of the defendants Sarah A. Davis, M. M. Martin and Jennie K. Carnes as the widow and next of kin and heirs at law of James Davis, deceased, for 804 acres out of the said Manuel de los Santos Coy four-league grant of land, and that they have and recover of and from the plaintiffs, interveners and cross-claimants their costs in that behalf expended; in favor of the said intervenors claiming as the next of Mn and heirs at law of J ohn R. Dunn, deceased, for an undivided 16-48 part of the said four-league grant in the name of Manuel de los Santos Coy, less the portions thereof set apart to the said Vanier and the said Sarah A. Davis, M. M. Martin and Jennie K. Carnes, and that they have and recover their costs in this behalf expended; in favor of intervenor Sam R. Perryman for an undivided 5-48 out of the said Santos Coy four-league grant after deducting therefrom the portions-decreed to the said John Vanier and the said Sarah A. Davis, M. M. Martin and Jennie K. Carnes, and that he have and recover his costs in that behalf expended of and from the defendants, Wharton Branch, John McKesson, D. C. Robbins and the heirs of A. W. Desmuke; in favor of the plaintiff, Nannie E. Morrow, for an undivided 3-48 of the aforesaid grant of four leagues, less the part decreed to the said John Vanier, the said Sarah A. Davis, M. M. Martin and Jennie K. Carnes, and that she recover her costs in that behalf expended against the defendants Wharton Branch, John McKesson, D. C. Robbins and the said heirs of A. W. Desmuke, deceased; in favor of the defendant and cross-claimant, Wharton Branch, for an undivided 13-48 of said four-league grant less the parts allotted to the said John Vanier, the said Sarah A. Davis, M. M. Martin and Jennie K. Carnes, and that he have and recover of and from all the plaintiffs, except the said Nannie E. Morrow, his costs in that behalf expended, and also in favor of said Wharton Branch for that certain part of the said four-league grant of land consisting of 250 acres and described by metes and- bounds, upon condition that the said Wharton Branch pay to the said W. F. Hardin the sum of $250 with interest at 8 per cent per annum thereon from August 25, 1883, to July 12, 1891, and 6 per cent per annum thereafter, within twenty days after the adjournment of that term of the court at which said judgment or decree was rendered, failing to do which the said Branch was entitled to 10-48 instead of 13-48 as above mentioned. In favor of the defendant and cross-claimant, W. F. Hardin, for an undivided 11-48 of the said Santos Coy four-league grant, less the parts and parcels adjudged to the said J ohn Vanier and the said heirs of James Davis, deceased; but should the defendant, Wharton Branch, fail to pay to the said W. F. Hardin within twenty days after the expiration of the term of the court at which said judgment or decree was rendered $250, then an undivided 14-48 of the said Santos Coy four-league grant was to vest in the said W. F. Hardin instead of 11-48 as above mentioned; and that he have and recover his costs in that behalf expended. (From brief of plaintiffs in error.)</p> <p>From this decree of the District Court Wharton Branch, McKesson & Robbins, and the heirs of A. W. Desmuke, deceased, appealed, and the judgment being affirmed, appellants obtained a writ of error. The assignments of error are set out in the opinion of the court.</p>

<p>Application for writ of error to Court of Civil Appeals for Fifth District, in an appeal from Hill County. The original application was here held imperfect and time for amendment allowed. The application was amended. The writ, however, was refused.</p>

<p>Social Club—Retailing Spirituous Liquors.</p> <p>The license tax imposed upon persons “engaged or engaging in the business of selling spirituous * * * liquors” does not apply to a club organized under the general incorporation laws for the “encouragement of social intercourse among it& members” * * * although spirituous liquors were bought and dispensed without profit to its members. The state cannot recover license against such club under art. 3380, Rev. Stats. (3226a, Sayles’ Eld.).</p>

Eebob to Court of Civil Appeals for Fourth District, in an appeal from Gonzales County. Suit was brought by plaintiffs in error in the District Court of Gonzales County for partition of property belonging to the estate of their deceased husband and father, against defendants in error, who claimed as heirs of a former wife of deceased.

<p>Application for writ of .error to Court of Civil Appeals for Second District, in an appeal from Hardeman County.</p>

<p>Error to Court of Civil Appeals for Third District, in an appeal from Lampasas County. t</p>

This was an action in trespass to try title brought by heirs of J. B. Murphy, a soldier in Fannin’s command, for land patented under a bounty warrant issued to his heirs. The defendants claimed under an administrator’s sale of the warrant made in an administration in Harrisburg County, Texas. The plaintiffs recovered judgment in the District Court. On appeal the judgment was reversed and rendered for the defendants. The plaintiffs obtained a writ of error.

<p>Questions cebtified by Court of Civil Appeals for Fifth District, in an appeal from Dallas County.</p>

<p>1. Requested Charge—Estoppel.</p> <p>If, in the course of a trial, counsel requests the court to give to the jury an instruction, which is refused, but which in whole or in part is embraced in the charge of the court, neither the counsel nor the party for whom he acts can question the correctness of the charge given by the court, so far as it conforms to the request made. It will be presumed that such charge was given in compliance with the request. (Pp. 65 to 68.)</p> <p>2. Requested Charges—Modifying Charge of Court.</p> <p>If an erroneous charge be given by the court the party injured thereby may by requested charge seek to explain, limit, or enlarge such charge without waiving objections thereto. The intent not to waive must appear by exceptions to the obnoxious charge or by the face of the requested charge in explanation, etc. (P. 68.)</p>

<p>Application for writ of error to Court of Civil Appeals for Fourth District, in an appeal from El Paso county.</p>

Ebror to Court of Civil Appeals for Fourth District, in an appeal from Val Verde County. The suit was brought by Bonnet to recover damages from the railway ■company for the death of his son while in their employ. Upon the evidence disclosed in the opinion the trial court directed a verdict for the •defendant, and on plaintiffs, appeal the judgment was affirmed by the Court of Civil Appeals, whereupon plaintiff obtained writ of error.

<p>Application for writ of error to Court of Civil Appeals for Second District, in an appeal from Wichita County.</p>

<p>Certified questions from Court of Civil Appeals for Fourth District, in an appeal from Bexar County.</p>

<p>Error to Court of Civil Appeals for Third District, in an appeal from McLennan County.</p> <p>McNeil sued the city of Waco, upon a contract to construct four cisterns for fire protection, to recover the contract price for one which he; had built and damages for refusing to allow him to complete his contract. He recovered judgment and, the city appealing, this was reversed and remanded by the Court of Civil Appeals; whereupon he obtained a writ of error affirming that the decision practically settled the case.</p>

This was an action by Crawford against the Houston & Texas Central Railway Company for damages for personal injuries. Judgment in trial court for plaintiff, which was reversed on appeal. Questions involved are discussed in Railway v. Crawford, 88 Texas, 277, on questions certified.

<p>1. Avoiding Sale for Fraud.</p> <p>In order to invalidate a sale on ground of fraud it is necessary to establish (1) fraud on the part of the vendor, and (2) notice thereof on part of vendee. Such notice may be shown by proving actual knowledge of the fraud, or actual knowledge of circumstances sufficient to put a reasonably prudent person upon inquiry leading to the fact of fraud. (P. 98.)</p> <p>3. Inquiry—Constructive Notice.</p> <p>The law does not impose upon a vendee the duty of any diligence until he has knowledge of some circumstance sufficient to put a reasonably prudent man upon inquiry. In absence of such knowledge he may assume good faith on part of the vendor. (P. 99.)</p> <p>3. Fraud—Notice—Charge.</p> <p>In an action to avoid a sale for fraud, it was error to charge the jury to find for the plaintiff if they believed it (the plaintiff) “might have known” of the fraudulent intent of the vendor “by the exercise of ordinary diligence.” The statute, article 2545, provides that the vendee’s title shall not be affected “unless it appear that he had notice of the fraudulent intent.” (Pp. 98, 99.)</p> <p>4. Charge—Construction of Deed in Evidence.</p> <p>The issue being whether a deed in evidence was fraudulent, it was the duty of the court to 'instruct the jury as to the legal effect of such deed, subject to their finding upon the issue of fraud. (P. 99.)</p> <p>5. Charge.</p> <p>A sale of the road-bed, franchise, etc., made March 31, 1873, was attacked for fraud. To support the charge, a sale by the railway company of its land grant, made June 24, 1874, was admitted in evidence as a circumstance. The defendant was entitled to a charge that if the jury believed that there was no fraud in the sale of March 31, 1873, they must find for the defendant, though they believed that the sale of June, 1S74, was fraudulent. (Pp. 99, 100.)</p> <p>6. Fraud—Competent Evidence.</p> <p>It being contended that the sale attacked was not necessary, for that the railway company could have met the debt for which the sale was made by the sale of its bonds, it was competent to prove what such bonds could have been sold for on the market had they been issued; as also would be competent all circumstances tending to show the probable value of the road and of its bonds. (P. 100.)</p> <p>7. Opinion—Expert Testimony.</p> <p>Persons familiar with the market value of bonds of such a road, from the circumstances and facts, would be competent to express an opinion as to what the bonds of the railway company could have been sold for on the market for cash. (P. 100.)</p> <p>8. Value of Bonds of Other Railway Company.</p> <p>It was incompetent to show the rate at which bonds of the Houston & Texas Central Railway, secured upon the same line of road, were sold. The promise by the H. & T. C. Ry. in the bonds secured upon the branch road was of itself an element of value. (P. 101.)</p>

The application for writ of error, after the address, is as follows: “Plaintiff in error sued in the District Court for the value of certain goods converted by appellant (Fields), of the value of $1293 with legal interest. “Defendant in error pleaded among other things that plaintiff in error had bought the goods at sheriff’s sale for $725 and, if entitled to recover, he could only recover the price paid at sheriff’s sale with interest.” “There was a verdict and judgment for…

<p>Cases Adhered to—Petition for Writ of Error.</p> <p>Hilliard v. White, 88 Texas, 591; Hodo v. Railway, 88 Texas, 523; Hammond v. Tarver, 32 S. W. Rep., 511; and Willis’ Executors V. Moore, ante, p. - (32 S. W. Rep., 1038), adhered to. Requisites of petition for writ of error. The application must conform to Rule 1, amended rules, 87 Texas, XXXVII.</p>

<p>1. Garnishment—Judgment.</p> <p>The court questions the proposition that the judgment debt in this case was not subject to garnishment because the judgment was not final. Defendant had obtained against the garnishee a judgment for damages for personal injuries caused by negligence, which judgment at the time of the service of the writ of garnishment was pending on appeal but was affirmed before the garnishment proceedings were tried. (P. 105.)</p> <p>2. Garnishment—Beceiver.</p> <p>Funds in the hands of a receiver or other officer of a court and subject to the control of that court are not subject to the writ of garnishment. (P. 106.)</p> <p>3. Same—Same—Statute Construed.</p> <p>A proceeding by garnishment against a receiver to subject funds in his hands due a creditor, to a judgment against such creditor, is not a suit against the receiver under article 1483, Revised Statutes. It is ancillary to and part of the original suit of the plaintiff in garnishment against the judgment debtor whose claim against the railway company administered by the receiver was sought to be reached to satisfy the judgment. (P. 106.)</p>

I^JSrrob to Court of Civil Appeals for Fourth District, in an appeal from Webb County. Jackson, a citizen of Texas, sued the Mexican National Bailroad Company, a Mexican corporation whose line of railway extended into Texas, for personal injuries received while in the service of the defendant in Mexico.

<p>Error to Court of Civil-Appeals for Fifth District, in an appeal from Dallas County.</p> <p>This was a suit by Hotchkiss to recover from the Cleveland School Furniture Company of Ohio for commissions, alleged to have been earned in sales of school-house furniture.</p> <p>The contract under which commissions by the agent (the defendant in error) were claimed, and which is construed in the opinion, stipulated as follows:</p> <p>“This contract made and entered into this-day of July, 1892, between the Cleveland School Furniture Co., of Cleveland, Ohio, and Dallas. School Supply Co., of Dallas, Texas, witnesseth, that the said Dallas School Supply Co. do hereby agree to sell the school furniture and school supplies manufactured and sold by the Cleveland School Furniture Co., until December 31, 1893, in the State of Texas, with the exception of the counties lying north of Gaines, Dawson, Borden, Scurry, Fisher and Jones, and east of Throckmorton, Archer and Clay, and to thoroughly canvass, or cause the same to be done, for the sale of said school furniture and school supplies, in the territory above named, to circularize parties interested in the purchase of such goods, and to use all diligence in building up the reputation of the same; and further agree to engage in the sale of no other school furniture or school supplies while this contract is in force.</p> <p>“The said Dallas Supply Co. agrees to take all orders for furniture and supplies upon the printed contract blanks furnished by said Cleveland School Furniture Co., and to use due precaution that they are properly and legally executed; that time sales shall draw at least seven per cent until paid, and to sell to such parties only as are fully responsible and legally qualified to enter into contracts, said contracts to be subject to the approval and acceptance of Cleveland School Furniture Co. * * *</p> <p>“In consideration of these agreements the Cleveland School Furniture Co. hereby agrees to pay to said Dallas School Supply Co., upon each and every lawful contract procured by them, the excess of the price stipulated in this contract for the goods, on cars at any depot in Cleveland, Ohio, above the following schedule. (Here follows the schedule of prices.) * * $</p> <p>“Commissions will be due and payable as follows: One half when orders are received and accepted, and balance when settlement is made with said Cleveland School Furniture Co., either in cash or by school warrants lawfully issued.”</p> <p>The letters referred to in the opinion and relied upon by the defendant in error, are as follows:</p> <p>Of date July 28, 1892.</p> <p>“We are glad to know that you have partially closed up another contract, and we hope that you will be áble to get the school warrants in such a shape that they will be perfectly legal. Where you sell to private individuals, would say that we require security, unless they are rated in the commercial agencies perfectly good. We want to impress on you that when dealing with private individuals, unless Catholic priests, you must be very careful to see that their securities are gilt edged; otherwise the contract will be refused.”</p> <p>Of date August 8, 1892.</p> <p>“In taking orders we shall also be very glad to have you exercise every care to see that all the orders are legally and properly taken, and that the warrants issued are in proper form before forwarding them. We have discovered that Texas paper is not considered gilt edge (?) in the banks, and they have specially recommended that we call your attention to this fact. Where the orders and warrants are properly taken and executed there will be no difficulty, and we earnestly hope you will co-operate with us in this matter.”</p> <p>On August 16, 1892:</p> <p>“If we furnish the goods and are obliged to pay our agents their half commissions, we think that is about as much as should be expected of us. We should insist upon at least one-third cash payment when the orders are taken, and we do not object to taking good school paper for one or two years. As we remarked in our former letter, Texas paper does not stand very high in Ohio, and we have had some difficulty in convincing our bank that everything is all right.”</p> <p>On September 13, 1892:</p> <p>“Would it not be possible to have these warrants approved by the County Superintendent or the County Judge? Our Mr. Tucker has bad some of the warrants fixed up in this manner.”</p> <p>On September 15, 1892:</p> <p>“We must have the assurance that the business you have sent us is bona fide and that the warrants issued in payment of our furniture are legal and will be paid.”</p> <p>On September 19, 1892:</p> <p>“The only thing that worries us is these school warrants. Our banks do not like them for the reason that the laws are so peculiarly constructed in your State. As we are now situated, and our ability to manufacture, our output can be marketed where we are perfectly certain there will be no drawbacks so far as warrants are concerned. We are anxious to do business in your State and wish to back you up in doing this. We wish you to protect us by satisfying yourselves that every order that is taken is bona fide, that it was taken in the regular manner, and if the goods are shipped they will be paid for according to the contract. Another feature of the warrant business is that there is a considerable expense attached to the collection. We must try to devise some scheme whereby the expenses for collection on these will be reduced to the minimum.”</p> <p>On September 22, 1892:</p> <p>“We notice that you have again sent us school warrants due in ’94 and ’95, and we prefer not to fill this kind of orders. It takes the credit of the Standard Oil Co., or the government, to stand drains of this kind. If Texas paper was desirable we should have no trouble in depositing it as collateral, but our banks do not care to touch them, especially such lengthy warrants.”</p> <p>On September 24, 1892. ■</p> <p>“In reference to order 57 from C. W. Wood.—From Mr. Wood’s letter we infer that the directors hold themselves responsible officially and individually, but the County Judge puts a damper on our hopes, and he says that he cannot approve these warrants until the money is in the treasury. We cannot see the objection to making us good, especially when we trust the district and let them have the benefit and use of the goods. We think the Judge should take this view of it, and, in fact, all the County Judges, for it is nothing but business that we be protected.”</p> <p>On September 24, 1892, again:</p> <p>“For the reasons already mentioned we trust you will favor us by getting the opinion of the Attorney General on these school warrants.”</p> <p>As requested, the defendant wrote to the Attorney General’s office for an opinion on the legality of these school warrants, and received in reply an unofficial letter from an assistant in said office that he thought the warrants would be met when due.</p> <p>Suit was for balance on account of commissions upon sales made for defendant by the plaintiff under the contract. The settlements for orders were made with so-called school warrants. These warrants were not valid. The defendant set up a counter claim for commissions already paid in ignorance of the invalidity of the school warrants, in which it had been paid by its agent, the plaintiff.</p> <p>The plaintiff recovered. The judgment on appeal was affirmed in Court of Civil Appeals. In application for writ of error, the defendant, who was appellant, complained:</p> <p>That the court érred in holding that the plaintiff below should not lose his commissions on account of the fact that the defendant (below) had failed to make collections on the furniture sold, and sustaining a judgment for the full amount of such commissions, when the contract under which the plaintiff was working provided that one-half of such commissions should be paid when the orders were accepted by the defendant, and the other half when settlement was made with defendant, •either in cash or in school warrants lawfully executed, it not appearing that any •such settlement was ever made.</p> <p>The court erred in sustaining the action of the trial court in giving judgment for the second half of the commissions, on all orders sold, which, under the contract, was to be paid when settlement for the goods sold should be made with defendant, either in cash or by school warrants lawfully executed, it not appearing that any such settlement was made. * * * In sustaining the action of the trial court in holding plaintiff •entitled to recover commissions on invalid and illegal orders accepted by defendant without notice of their invalidity or of the facts making them invalid.</p> <p>* * * In holding that plaintiff was entitled to recover commissions on invalid orders sold by him in Texas as agent of defendant, and accepted by defendant, a resident of Ohio, without notice of their invalidity •or of the facts making them invalid, and in reliance upon the agreement •of such agent (the plaintiff) that all such orders should be legally taken.</p>

<p>Error to Court of Civil Appeals for Second District, in an appeal from Tarrant County.</p> <p>Suit by the Merchants Mational Bank, upon the notes described in the opinion, against all the makers thereof. Swasey, one of the defendants, made part payment after the suit was commenced and was released. The trial court gave judgment in favor of defendants, holding this a discharge of all. The bank appealing, this judgment was reversed by the Court of Civil Appeals and judgment rendered against all the defendants except Swasey, and denying him judgment over against his co-defendants for contribution. Taylor, Boche and Swasey prosecuted separate writs of error. The facts appear in the opinion.</p>

<p>Error to Court of Civil Appeals for Second District, in an appeal from Archer County. t</p> <p>The suit was brought by Mrs. McLaren, joined by her husband, to recover hack certain land from defendants, who held same under a sale by the trustee named in a. deed of trust executed by plaintiffs. Defendants had a verdict and judgment in the trial court, which on plaintiffs’ appeal the Court of Civil Appeals affirmed, and appellants procured writ of error.</p>

<p>1. Petition for Writ of Error—Buies.</p> <p>Rule 1 of this court (87 Texas, XXXVII.) is violated when the petition for writ of error, instead of stating the nature of the case, gives a history of it preliminary to the assignments of error. The petition should not contain such matters unless the statement of the case given by the Court of Civil Appeals is incomplete or incorrect, in which case the proper place to suggest such deficiency or inaccuracy is under the appropriate assignments of error. (Pp. 137-138.)</p> <p>.2. Same—Objects of Bule.</p> <p>The objects of the rule cited above were to enable counsel, in the application for writ of error, to avail themselves of the statement of the case made by the Court of Civil Ap leals without repeating and to save this court from loss of time in reading unnecessary matter. The rule will be rigidly but reasonably enforced. (P. 138.)</p>

The suit was brought by McFadden Bros, against Martin, Wise & Fitzhugh and against Eddy & Cross, receivers of the M.,K. & T.Ry. Co., which road was also subsequently made a party defendant, to recover the value of certain cotton shipped over the road, while operated by the receivers, by said Martin, Wise & Fitzhugh, and transferred by them after shipment to plaintiffs.

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Dallas County.</p> <p>The suit was brought by the Citizens’ Bank against the Van Winkle Gin & Machinery Co. to recover the amount of an accepted draft drawn on it by the Buffalo Forge Co. Plaintiff had judgment for the amount of the claim and defendants, appealing to the Court of Civil Appeals, where the judgment was affirmed, then obtained this writ of error.</p>

Original proceeding in Supreme Court to compel by writ of mandamus defendant A. J. Baker, Commissioner of the General Land Office, to issue to plaintiff a certificate that the records of his office show that the ■sale to R. B. Coleman of survey No. 6 in Frio County was illegal and that no patent could be issued therefor, for the reason (1) that it was covered by an older title, and (2) it was not a sale of detached public lands—the certificate being necessary to secure the…

<p>Error to Court of Civil Appeals for Fourth District, in an appeal from El Paso County.</p>

<p>1. Master and Servant—Negligence—Circumstantial Evidence.</p> <p>When a servant sues his employer for damages arising from injuries caused by the negligence of the latter, the plaintiff must prove the negligence of the defendant, and proof of the accident and injury alone will not be sufficient to authorize a recovery. But the circumstances attending the injury may, without any direct evidence, be sufficient to establish the fact of negligence. (P. 170.)</p> <p>2. Same—Fact Case—Bes Ipsa Loquitur.</p> <p>A brakeman sitting on the side of a car in a train running between stations was killed by a steel rail, part of the load of a car in front of him, falling therefrom, one end striking the ground and the other sweeping along the side of the train and striking him. Without other proof of negligence in the loading of the car of rails, the circumstances were sufficient to take the case to the jury and it was error to direct a verdict for defendant. (Pp. 169 to 173.)</p> <p>3. Same—Duty of Bailway Company.</p> <p>It is the duty of a railway company to place the cars on its road in the hands of its employes in a condition reasonably safe to be handled by them in the course of transportation. If a car be not in such condition and injury results either from defect in the car or in the manner of loading it, the railway company would be liable for damages for such injury. (P. 172.)</p> <p>4. Careles? Loading of Cars—Opinion Evidence.</p> <p>It is competent to prove by expert testimony that if heavy iron rails are properly loaded upon a car for carriage the rails so loaded will not fall from the car in transportation, although a jury upon their own judgment might arrive at the same opinion or conclusion. (P. 173.)</p> <p>5. Custom—Duties of Brakeman—Evidence.</p> <p>In the absence of testimony that the duties of a brakeman upon all railroads were to attend to the brakes upon the train and do not require him to aid in or supervise the loading of the cars nor to inspect said cars after they are loaded, a witness knowing nothing of the duties of a brakeman on the defendant’s railroad was incompetent to testify to the duties of brakemen generally or upon other railroads. (P. 174.)</p>

• Error to Court of Civil Appeals for Second District, in an appeal from Greer county. This suit was brought by Vanleer to recover the value of certain goods transferred to him by Duke & Dodson through the instrument construed by the court in the opinion herein and taken from his possession by the sheriff by attachment at suit of a creditor of Duke and Dodson, the sheriff, Tittle, and the attaching creditor being made parties defendant.

Suit by Fuchs against the El Paso National Bank and its president for conversion of silver placed in its hands. Attachment issued and was levied on real estate of Bronson, the president, and plaintiff had .judgment for bis claim and foreclosure of his attachment lien, a motion to quash attachment having been overruled. On appeal this judgment was affirmed by the Court of Civil Appeals and defendants obtained writ •of error.

<p>1. Homestead—Divorced Woman—Case in Judgment.</p> <p>By decree granting a divorce the residence oí the parties with 200 acres oí land, the separate property oí the husband, was allotted to the wife for her life. She had no children. She occupied the land so decreed to her as homestead. Her interest in the land was sold under an execution issued upon a j udgment upon a liability subsequent to the divorce. In suit for the land by the purchaser against the divorced woman, held, that lj,er right in the land was not exempt from execution. (Pp. 205 to 209.)</p> <p>2. Homestead—Divorce.</p> <p>Man and wife having no children had a homestead upon land the separate property of the husband. A divorce was granted and the homestead adjudged to the wife for her life. Held, that the divorce destroyed the particular family the existence of which gave the homestead right. The court had no power to decree her a life estate in the property on the ground that it was the homestead of the family. By the decree she took a new estate which was subject to execution in absence of facts making her a head of a family. (P. 207.)</p> <p>3. Same.</p> <p>In such condition at the time of the sale, she having no family, section 50 of article 16 of the Constitution did not apply, nor did section 52 affect the case, because, as to succession to the homestead, it does not a-pply in cases of divorce. (P. 209.)</p>

Question certified by Court of Civil Appeals for Second District, in an appeal from Tarrant County. The facts in litigation are given by the appellee as follows: “Hood & Co. were indebted to appellee for rent in the sum of $170 for the storehouse in which the buggies involved were stored, and in payment of same sold to appellee for the sum of $210 the vehicle in question, of which forty dollars was paid in cash and the balance by credit upon the account.

The material allegations in the application for writ of error are here given: “The Insurance Company was brought into the District Court of Tar-rant County, Texas, by a writ of garnishment applied for by J. W. Swayne with a view of compelling it to pay $3500 to plaintiff in garnishment under the supposition that the garnishee was indebted to E. E. Chase in said amount by reason of a loss by fire, against which the Insurance Company (garnishee) had insured the said Chase.

<p>Error to fionrt of Civil Appeals for Second District, in an appeal from Wichita County.</p> <p>Suit for land. Pleas not guilty and five years limitation; involving delivery of deed, conflict of calls of survey, etc. Plaintiffs recovered in District Court; judgment affirmed on appeal; error at petition of defendants.</p>

This suit, an action of trespass to try title and for partition, was instituted on the 14th day of August, 1874, in the District Court of Dallas County, by the plaintiffs Daniel B. Grigsby and Maria Louisa Swindle née Edens, joined by her husband C. C. Swindle, against the ¿ppellant and three hundred or more other defendants, one of whom was Bobert F. Aspley, to recover the community interest of their mother in the James A. Sylvester 640 acre survey, and in about 3284 acres…

<p>1. Statute Taking Effect Ninety Days After Adjournment.</p> <p>Article 3, section 39, of the State Constitution, prescribes, “No law passed by the Legislature * * * shall take effect or go into force until ninéty days after the adjournment of the session at which it was enacted unless,” etc. This clause by supplying the words evidently omitted may read as if it had been written thus: “Until after the expiration of ninety days after the adjournment of the Legislature;” and this provision of the Constitution should be construed as if this language had been used. (Pp. 231, 232.)</p> <p>2. Time—Notice.</p> <p>In determining when all acts of the Legislature shall take effect when not specified in the act, in-computing the term “ninety days after,” etc., both the day of adjournment and the ninetieth day thereafter are excluded. Ninety full days must pass from the day of the adjournment. (Pp. 231, 232.)</p> <p>3. Case in Judgment.</p> <p>Article' 566 of Revised Statutes of 1879 was amended March 27, 1885, so as to repeal section 27 of the article under which the appellee company had been incorporated on June 29, 1885. Held, that the original article 566 was in force at said date of incorporation, and that the repealing act did not go into effect until June 30, 1885. (Pp. 231 to 233.)</p>

<p>1. Variance—Attachment Bond.</p> <p>Plea in reconvention by defendant in attachment, against the plaintiff in attachment and two alleged sureties on his attachment bond, is not sustained by proof of an attachment bond with three sureties. There is a fatal variance between the bond with two sureties, described in the plea, and one which, alike in all other respects, has an additional surety. (P. 234.)</p> <p>'2. Same—Evidence—Abstract Question.</p> <p>Since the bond with three sureties, on file in the suit, would not, if introduced in evidence, support a judgment on the plea in reconvention, the question whether it is necessary to introduce in evidence the bond on file and part of the record in the suit in order to recover on the plea becomes immaterial as" being an abstract question. (Pp. 234, 235.)</p>

Questions certified by Court of Civil Appeals for Second District, in an appeal from Tarrant County. Suit upon six vendor’s lien notes. The defendant pleaded an adjustment made in a former suit upon the notes, by which a cash payment was made and a further payment and the reconveyance of one-third interest in the land within 30 days promised.

Montgomery sued Brown to recover amount of a note given him for purchase money of land conveyed by deed with lien reserved, and to foreclose his vendor’s lien therefor, to which the latter pleaded failure of consideration by reason of the existence of an outstanding incumbrance against the land. The trial court directed a verdict for the plaintiff and, defendant having appealed, the case was affirmed by the Court of Civil Appeals.

<p>1. Citation by Publication in Justice Courts.</p> <p>The law of 1870, which authorized service by publication in suits before justices of the peace, was not repealed by the repeal of the law which empowered the Governor to select and designate the official paper for that district. (P. 258.)</p> <p>2. Transient Person—Non-Resident.</p> <p>A non-resident, temporarily in Texas, may be subd in this State as a transient person, and jurisdiction over him as such may be had by publication of citation from a justice's court. (P. 258.)</p> <p>3. Citation and Publication Thereof.</p> <p>Citation issued by a justice of the peace against Kelley as a transient person, directed to the sheriff, etc., of Caldwell County, to be published in “the News Echo, a newspaper published in Caldwell County,” requiring defendant to appear at the office of the justice, in the town of Lockhart, otherwise in due form, is not void. (P. 258.)</p> <p>4. Initial Letters.</p> <p>A citation issued to the proper officers of Caldwell County, Texas, and signed “E. H. Rogan, J. P. C. Co.,” is sufficient to show that Rogan was a justice of the peace of that county. (P. 258.)</p> <p>5. Service of Citation.</p> <p>Service of citation effected too late for the next term is good for the term thereafter. (P. 258.)</p>

<p>Error to Court of Civil Appeals for Fourth District, in an appeal from Bexar County.</p> <p>The suit was brought by Mullen against the insurance company to recover, on the death of his wife, upon an insurance policy for $2000 upon their joint lives. Defendant had judgment in the trial court, which was affirmed by the Court of Civil Appeals on appeal.</p> <p>Chief Justice Gaines and Justice Brown being disqualified, the Governor appointed Hon. A. H. Willie Special Chief Justice and Hon C. C. Potter Special Associate Justice, who, with Justice Denman, constituted the court.</p>

<p>Application for writ of error to Court of Civil Appeals for Second District, in an appeal from Tarrant County.</p> <p>Suit by applicant Sallie M. Baker against the insurance company, resulting in a recovery by plaintiff, was on appeal by defendant reversed and remanded by the Court of Civil Appeals, and application made by appellee to the Supreme Court for writ of error.</p> <p>The application insisted that the evidence .was not evenly balanced, but that other testimony sustained the allegation to which the illegal testimony was directed.</p> <p>Chief Justice Gaines and Associate Justice Brown being disqualified, the Governor appointed Hon. B. H. Ward, Special Chief Justice, and Hon. C. C. Potter, Special Associate Justice. The Special Justices, with Associate Justice Denman, constituted the court.</p>

The suit was brought by Barler to recover of Miller $1638, balance of ■a subscription of $4000 made by Barler in aid of the construction of a railway and assumed- by Miller as part consideration for the purchase of certain land bought by him from Barler and on which the latter sought to foreclose a vendor’s lien.

<p>Certifying Questions—Cases Adhered To.</p> <p>Kelly-Goodfellow Shoe Co. v. Insurance Co., 87 Texas, 112, and Laughlin v. Insurance Co., 87 Texas, 115, adhered to. A statement followed by numerous questions, practically submitting the whole case, certified by a Court of Civil Appeals, does 'not confer jurisdiction upon the Supreme Court—such certificate must be dismissed.</p>

<p>Questions cebtified by Court of Civil Appeals for Fifth District, in an appeal from Bowie County.</p>

Action of trespass to try title by heir of original grantee against defendants holding under a deed from original grantee, the genuineness-of which was attacked.

The application for writ of error contained a detailed statement of the pleadings, the ruling of the court sustaining exceptions to the answer, and the final judgment for the plaintiff. Following was set out the ■grounds urged hy the defendants for a rehearing in the Court of Civil Appeals, that court having affirmed the judgment of the trial court. It was complained that the action of the Court of Civil Appeals upon the motion was erroneous.

<p>Receiver—When Not Necessary Party in Suit for Land.</p> <p>Action by the State in trespass to try title, filed September 3, 1891, against the railway company and Olcott. By amendment the plaintiff alleged that the lands sued for were illegally patented, under certificates issued to the railway company for sidings, and turn-outs without authority of law, with prayer that the patent and certificates be cancelled. Among other matters the defendant pleaded in abatement that the railroad was, at the time of the filing of the suit, and still, in the hands of a receiver, and that the receiver was a necessary party. It appeared that the lands, under order of the TJ. S. Circuit Court, had been sold by the receiver in 1889 to Olcott, and the sale approved. The Circuit Court subsequently, and on account of litigation seeking to set the sale aside, ordered that the receiver retain possession of the lands. Held, that the receiver was not a necessary party to the suit and the trial court did not err in hearing and proceeding to judgment without making the receiver a party, nor in overruling the plea to abate the suit.</p>

Action of trespass to try title. The plaintiffs claimed under a patent issued in 1865, upon a survey made in 1847 by virtue of a bounty warrant issued to W. C. Hays. The defendants claimed under a grant to Willis Avery made in 1832, validated in 1854. Plea of not guilty and limitations.

<p>1. Charge—Double Damages—Delay in Cattle Shipment.</p> <p>In a suit against a railway company, for damages by injury to cattle caused by delay in furnishing cars for carrying them from Lott, Texas, to Chicago, see opinion for charge of court held not subject to the objection that it held defendant liable for double damages, in permitting plaintiff to recover depreciation in the value of the cattle at Lott caused by the delay before shipment, and also the difference between their market value in Chicago at the time they arrived and that at the time they would have arrived, had there been no delay. (Pp. 310, 311.)</p> <p>2. Same—Measure of Damages.</p> <p>The measure of damages for such delay is the difference between the market value of the cattle at the place of their destination, on the day the carrier agreed to deliver them, and the day on which it did deliver them at such place. See opinion for charge on this subject held not prejudicial, but rather, too favorable to defendant. (Pp. 311, 312.)</p>

<p>Damages for Delay of Telegram—Evidence.</p> <p>In a suit against a telegraph company for negligent delay in delivering a telegram summoning plaintiff to the deathbed of her brother, in order to show the extent of grief caused to plaintiff, evidence was admitted, over defendant’s objection, that deceased had spoken of his desire to see her and disappointment at her delay, and said she was too rich and proud to care for him, and died in that belief, and that this was communicated to plaintiff on her arrival between his death and burial. Held:</p> <p>(1) The testimony did not tend to prove the state of plaintiff’s feelings towards her brother; nor to prove any result of the failure to deliver the message for which the telegraph company was liable. The defendant could not be expected to have anticipated such results. (P. 314.)</p> <p>(2) The telegraph company can only be held for such consequences as it should have anticipated, from the knowledge that it had and that which the law imputes to it, as the probable result of a failure to deliver the message. (P. 315.)</p>

The appeal was upon an agreed case under the statute. French and Rice had contributed money with others to purchase the lands held by P. E. Fairbanks under the instruments and by the title shown in the opinion. The York County Savings Bank sued them and levied attachment on their interest in the land.

<p>1. Practice on Appeal.</p> <p>Plaintiff relied upon two issues, either one, if sustained, authorizing a judgment in his favor. The record showed that testimony was produced in support of both issues. The case was tried without a jury and there is no finding of facts or of law by the trial judge, so that it does not appear upon which issue the judgment was rendered. In such case errors as to one only of the issues are no ground for reversal. It must be shown that the judgment could not be sustained upon either issue. (P. 326.)</p> <p>2. Sufficiency of Testimony in Supreme Court.</p> <p>There being some evidence to sustain the issue as found by the Court of Civil Appeals supporting the judgment, this court has no jurisdiction to determine whether the judgment is supported by the evidence as contained in the record. (P. 328.)</p> <p>3. Assignment of Error—Motion for Rehearing.</p> <p>Plaintiff in error complained “that the Court of Civil Appeals erred in its application of the law to the facts of the case, even admitting that such an agreement was made.” This was not made in motion for rehearing and cannot be considered an error. When not attacked by motion for rehearing the conclusions of fact and law by the Court of Civil Appeals will be held conclusive by this court. (P. 328.)</p>

<p>1. Appeal in Receivership Cases—Final Judgment.</p> <p>While the right of appeal lies upon the action of the trial court, upon an intervention in receivership proceedings, in allowing or disallowing the claim of the intervener, it does not follow that when the final judgment has been rendered in the main proceeding a party at interest may not appeal from such general judgment, and from the special decrees rendered at the same term in favor of the intervening creditors in the one proceeding, by making all persons adversely interested parties to - the appeal. (P. 331.)</p> <p>2. Same—Practice.</p> <p>A separate appeal from the judgment upon each intervention causes unnecessary labor and expense, and is a practice not to be encouraged. The rights of the parties can be best determined on appeal when all are before the court. (P. 331.)</p>

<p>Practice on Appeal—Several Appeals in One Judgment.</p> <p>Two appeals in the same case do not make two cases. Where in the trial court there was but one case and judgment adjusting the rights of many parties, on appeal there is but one case, and where more than one transcript is filed the court may properly treat the transcripts as of one case and consolidate them. (P. 332.)</p>

<p>1. Immaterial Error.</p> <p>Failure of the Court of Civil Appeals to make additional findings of fact when requested by motion will not be considered by the Supreme Court on writ of error. (P. 336.)</p> <p>2. Vendor’s Lien—Mechanic’s Lien.</p> <p>Under art. 3301. Rev. Stats., the mechanic’s lien is subordinate to a vendor’s lien existing before its inception: but such vendor’s lien has precedence as to the land only—not the improvements by which the mechanic’s lien arose. (P. 337.)</p> <p>3. Same—Same—Marshalling Securities.</p> <p>Where there are conflicting liens: e. g. vendor’s lien having precedence upon the land and mechanic’s lien having precedence upon the buildings, the equities may be reached by ascertaining the value of the land without the buildings and of the buildings alone. This will establish the proportion of proceeds of a sale made to foreclose such liens to which each is entitled. (P. 339.)</p>

<p>1. Railroad Land Grant—Construction of Statutes.</p> <p>The Galveston, Harrisburg & San Antonio Railway Company did not succeed to-the land grant of the Buffalo Bayou, Brazos & Colorado Railway Company by virtue of the Special Act of July 12, 1870; said last named railway company having been restricted by special act of February 11, 1854, to run its line to Austin, and its successor constructing a different line. (Pp. 351 to 355.)</p> <p>2. Same—Same.</p> <p>If it were the right of the company under the existing laws to acquire lands by-doing a specific thing (e. g. building its road to Austin), the Legislature having no power under the Constitution (of 1869) to make any grant of land, could not confer-upon it the right to earn lands by doing another—a different thing (e. g. building the-road to San Antonio). (Pp. 354, 355.)</p> <p>3. Intent of Special Act of July 27, 1870.</p> <p>It does not appear from the language of the special act of July 27, 1870, for the-benefit of the Galveston, Harrisburg & San Antonio Railway Company, that it was. to transfer to it the land grant it had upon building to Austin, to the line to be completed to San Antonio, as the company retained the right to build to Austin. The said railway company did not, by virtue of said act, acquire the right to earn lands by the construction of its line to San Antonio. (P. 355.)</p> <p>4. Equities.</p> <p>The laws as to land grants to railroads prior to 1869 were repealed by the constitution of that year, and the Galveston, Harrisburg & San Antonio Railway Company cannot maintain, in the action by the State for the recovery of lands illegally granted for its road between the Colorado and Guadalupe Rivers from 1870-to 1876, the defense that the State is in no position to ask the relief, for the reason that the railway company has earned the certificates for 163 miles west of San Antonio, for which no lands had been obtained. (P. 355.)</p> <p>5. Same.</p> <p>The claim is analogous to asserting that the claimant of land surveyed under a. void certificate thereby had obtained some right to the land which would become valid from his ownership of valid certificates. (P. 356.)</p>

<p>1. Donations of Land to Railroads—Statute Construed.</p> <p>The act approved January 30, 1854, to encourage the construction of railroads in Texas by donations of land (Pasch. Dig., Arts. 4945-4957) did not apply to railway companies thereafter to be chartered. (Pp. 369, 370.)</p> <p>2. Legislative Aid to Railroad Building.</p> <p>It was the policy of the Legislature in 1854 in granting new charters to make such provisions for the companies thereby created as should be demanded by such special conditions as should exist at the time of the grant. (P. 369.)</p> <p>3. Case Limited.</p> <p>Railway v. Kuechler, 36 Texas, 382, overruled in so far as it held that the law of January 30, 1852, donating lands to railroads applied to railroad companies thereafter to be chartered. (Pp. 369, 370.)</p> <p>4. Revision—Amendment.</p> <p>Section 12 of the special charter of the Waco Tap Railway Company, approved November 5, 1866, attempted to confer upon said company the benefits of the law of January 30, 1854, donating land to railway companies. Said section was in no sense a revision or amendment of said latter act. It extends the operation of that act so far as to make it apply to a company to which it did not apply before. It does not conflict with section 25, article 7, of the State Constitution then in force (Pasch. Dig., 67) prescribing that “no law shall be revised or amended by reference to its title,” etc. (P. 370.)</p> <p>5. Construction of Constitution.</p> <p>Section 25, article 7, of constitution of 1845, prescribing that “no law shall be revised or amended by reference to its title; but in such case the act revised or section amended shall be re-enacted and published at length,” and other similar com stitutional restrictions upon the form of legislation have never been given a rigid construction. They have been held applicable to such statutes only as come within their terms when construed according to the spirit of such restrictions and in the light of the evils to be suppressed. (P. 370.)</p> <p>6. Same—Form of Legislation.</p> <p>Section 12 of charter of the Waco Tap Railway Company, November 5, 1866, extends to it in express terms the privileges of earning lands which were granted to other railroad companies by the general law of 1854. The meaning of the pinion is as clear as if the provisions of the general law had been repeated. (P. 371.)</p> <p>7. Same—Same.</p> <p>The practice of making the provisions of one statute applicable to another by a reference to the former law in the new act has been uniformly recognized as valid. (P. 371.)</p> <p>8. Act for Relief of Railway Companies.</p> <p>The act of January 11, 1862 (Pasch. Dig., 4961) “for relief of railway companies, * * * provided said company shall complete * * * within two years after the close of the present war between the Confederate States and the United States of America,” etc., had the legal effect to continue the operation of the original law as to such companies until two years after the close of the war. (P. 372.)</p> <p>9. Revival of Extinct Law.</p> <p>The constitution of 1845 contained no inhibition against the revival of statutes by reference to their title. And the section 18 of the special act incorporating the Waco Tap Railway Company, approved November 5, 1866, reviving the land grant under the act of 1854, would have been valid even if said last act had expired, so far as to entitle the road to land donation. (P. 372.)</p> <p>10. Revising Expired or Repealed Law.</p> <p>In the absence of any constitutional restriction a statute by a proper reference to another may incorporate in it the provisions of the former law although the former may have expired or may have been repealed. The purpose of the later act is to revive the former, and this effect is given by the reviving act. (P. 372.)</p> <p>11. Land Donations to Railway Companies—Act of November 13, 1866.</p> <p>Under the act of November 13, 1866, and its charter, the Waco Tap Railway Company was granted the privilege of acquiring lands from the state; and said legislation would be effective for that purpose had the company organized, accepted the charter and complied with its provisions. A charter does not become a contract until accepted. An organization is an acceptance. (P. 373.)</p> <p>12. Presumption of Legality.</p> <p>Land certificates granted the railway company for construction under the statutes donating lands are prima facie valid. And from their issue the presumption arises that the Commissioner of the Land Office inquired into and found the existence of all the facts requisite to justify his action. (Pp. 373, 374.)</p> <p>13. Waco Tap Railway Company—Amended Charter.</p> <p>The act of August 6, 1870 (Special Laws, 1870, p. 112) amending the charter of the Waco Tap Railway Company and changing its name to that of the Waco & Northwestern Railway Company indicates that the original company had never been organized and that it was the intention to revive it and to give it a new lease of life. The recitals, however, should not be deemed conclusive, and it was competent to prove, if it could be done, that an organization had in fact been effected before the date of the amending act, and that the rights granted in the original charter had been acquired and preserved at that date. (P. 375.)</p> <p>14. Constitutional Convention of 1869—Ordinances.</p> <p>A convention called to frame a constitution which is to be submitted to a popular vote for adoption cannot pass ordinances and give them validity without submitting them to the people for ratification as part of the constitution. The constitution of 1869 called under Act of Congress of March 23, 1867 (2 Pasch. Dig., p. 1093) was not invested with the power of independent legislation. The ordinance of the convention for relief of the Waco Tap Railway,. December 11, 1868, was not valid. (P. 376.)</p> <p>15. Constitutional Convention of 1866—Ordinances.</p> <p>The constitutional convention of 1866 held under proclamation of President Johnson was not required to submit its action to the people for approval. Its ordinances had the effect of law. Grigsby v. Peak, 57 Texas, 142. (P. 377.)</p> <p>16. Status of Waco Tap Railway Company.</p> <p>The Waco Tap Railway Company was chartered November 5, 1866, by special act. The charter did not expressly fix the time in which it should organize. From provisions in the charter it is manifest that the company should be organized within two years. August 6, 1870, near four years from date of original grant, the charter was amended. In absence of evidence of an organization under the original act, the position of the railway company when the amendment was enacted was the same as if no charter had been granted. The amendatory act only revived the right to form a corporation. It provided that nothing therein should be construed to revive the land grant. (Pp. 375 to 378.)</p> <p>17. Constitution of 1869 as Affecting Donations to Railways.</p> <p>The constitution of 1869, section 6, article 10, prohibited land grants. Undoubtedly this prohibited future grants. If the Waco Tap Railway Company had never organized, the law for its creation had become a nullity and it had no existing rights to pass to the new company as its successor. (Pp. 377, 378.)</p> <p>18. Waco Tap Railway Company—Legislation Amendatory in June, 1870.</p> <p>The act of June 18, 1870, Laws 12th Leg., 13, attempting' to legalize the ordinance of December 11, 1868, taken in connection with the amendatory act of August 6, 1868, Special Laws 112, by same Legislature does recognize the existence of the corporation,—but this may have been a mere potential existence. It does not control the amendatory act which clearly indicates that the corporation had then no actual existence. (P. 378.)</p> <p>19. Waco & northwestern Railway Land Certificates.</p> <p>The amendment to charter of the Waco Tap Railway Company, August 6, 1870, clearly indicates that the corporation had then no actual existence, and there being no testimony to an actual organization it does not appear that the land certificates issued to its successor, the Waco & Northwestern Railway Company, were valid; for which reason the judgment is reversed. If such organization be shown on another trial, then will arise the questions (not here decided) whether section 6, article 10, of Constitution of 1869 had the effect to repeal the law granting the certificates, as also whether a failure to comply with section 13 of the original charter ipso facto forfeited the company’s privilege of acquiring lands. (P. 378.)</p> <p>20. Description—Sale of Privileges and Franchises.</p> <p>Shirley v. Railway, 78 Texas, 131, limited; and it is an open question whether the land grant was or was not included in the deed of trust and sale by the trustees by which was sold “also all and singular the chartered rights, privileges and franchises of every kind granted to the Waco & Northwestern Railway Company by acts of the Legislature of the State of Texas which are now' possessed by it, or to which it may hereafter become entitled under said acts and the laws of Texas relating to railroads.” (P. 379.)</p> <p>21. Deed by Directors of “Sold Out” Railway Company.</p> <p>It seems that a deed, regular in form, by the directors or trustees of the Waco- <& Northwestern Railway Company, of its land grant, after the railway was sold out, should be treated ás prima facie evidence of title in the grantee. But such power of sale could only be exercised by the directors in office at date of sale of the franchise. (Pp. 379, 380.)</p>

<p>Questions certified by the Court of Civil Appeals for Third District, in an appeal from McLennan County.</p>

<p>2. Findings of Facts by Trial Court.</p> <p>Error to Court of Civil Appeals for Fifth District, in an appeal from Bexar County.</p> <p>Louis and J. A. Otto sued Halff & Bro. to cancel a note given by plaintiffs in settlement of an account and to enjoin defendants from disposing of collateral notes pledged to secure it. Defendants admitted and sought to justify the alteration and asked judgment on the original consideration. Plaintiffs had judgment cancelling the note. Defendants had judgment against plaintiffs for balance due on the original account and the col-laterals were held to secure it. This judgment was affirmed on appeal, and plaintiffs and appellants procured writ of error.</p> <p>Touching the conclusions of fact filed by the trial court, the Court of Civil Appeals say: Appellants contend among other things that the conclusions of fact filed by the trial judge should not be given any effect because they were filed without having been requested by either party. There is no force in this point, as it does not affirmatively appear by the record that such was the case; the only suggestion of it being in a motion to strike out the conclusions, which was overruled, perhaps for the reason that a request had been made. We might well presume from the filing of the conclusions that the request therefor had been made. Moreover, the judgment in favor of appellees would require us to consider that the court made the very conclusions that were filed, for by no other findings could that judgment have been reached.</p>

Ekrob to Court of Civil Appeals for Second District, in an appeal from Hood County. Action for rent by distress warrant for $4003.88. The distress was levied upon the stock in trade of the defendant. The plaintiff by amendment increased its claim to $13,500—chiefly for rents, but in part balance of an account.

<p>Where no findings of fact have heen made by the Court of Civil Appeals upon, an issue it is the practice of the Supreme Court to consider, the uncontroverted evidence in the record pertinent to the issue. The absence of findings of facts in such ease is not material. (P. 408.)</p> <p>3. Mortgage—Record as Notice.</p> <p>The classes of persons to whom notice was to be given by the record of a mortgage were creditors of the mortgagor, subsequent purchasers and mortgagees or lien-holders in good faith. Such record does not affect an insurance policy upon personal property, under a chattel mortgage when insured. (Pp. 408 to 410.)</p> <p>3. Waiver—Pleading.</p> <p>The waiver hy an insurance company of a breach of the conditions of the policy-sued on must be pleaded in order to admit proof of such waiver. (P. 410.)</p> <p>4. Contract—Ignorance of Terms Of.</p> <p>The holder of an insurance policy is bound by its terms whether he read it or not, when no facts are shown which prevented him from doing so. (P. 410.)</p> <p>5. Warranties in Policy.</p> <p>The fact that the plaintiff did not know the contents of the policy sued on will not relieve him from the binding force of the warranties contained in it. If, however, the insurer, knowing of the existence of a fact at the time of the issuance of the policy, inserted therein a warranty against its existence by the insured the court will hold it to have been waived. (P. 410.)</p> <p>6. Inquiry—Duty of Insurance Agent.</p> <p>It does not devolve upon the insurer (insurance agent) to make inquiry as to the. existence of mortgages or other liens upon property insured, when no written or printed application is presented hy the insured. (P. 412.)</p> <p>7. Fact Case—Waiver.</p> <p>See facts upon which it is held that it does not appear, as matter of fact or of law, that the insurer waived the clause as to incumbrances, or that it did not intend to insist upon such clause inserted in the policy. (Pp. 412, 413.)</p>

The suit was brought by Sarah J. Wynne et al. against Parke, to recover land which plaintiffs claimed as heirs of Amanda J. Wynne, and defendant claimed under a deed made by her agent by virtue of the power of attorney construed in this opinion. The trial court gate judgment for defendant, and on plaintiffs appeal this was reversed and rendered for appellants, whereupon appellee obtained writ of error.

The suit was brought by the Amory Mfg. Co., to recover from the railway company the value of the burned cotton. The trial court found that defendant was not negligent and was exempt from liability as a carrier under the terms of the bill of lading, and gave judgment for defendant. Plaintiff appgaled, and the judgment being affirmed by the Court of Civil Appeals, prosecuted writ of error.

<p>Questions certified by Court of Civil Appeals for Second District, in an appeal from Cooke County.</p>

Suit by Mollie E. Stallings to cancel a deed by herself and husband conveying their homestead, which was alleged to have been obtained from her by fraud. The deed was adjudged void as to her and she was awarded a recovery of possession, but the conveyance was held effective to pass the husband’s interest when it should cease to be her homestead, and this judgment was, on her appeal, affirmed by the Court of Civil Appeals, whereupon she obtained writ of error.

<p>Questions certified b)r Court of Civil Appeals for Fourth District, in an appeal from Dallas County.</p>

Suit against the City of Dallas hy Evelyn Peacock, to recover damages for personal injuries caused by a broken grating in the street. Plaintiff had judgment, the trial court overruling the defense based on want of notice of defect, as provided in the special charter of the city.

■ The application was made to bring up a judgment of the Court of Civil Appeals reversing and remanding the case, on the ground that the ruling conflicted with those in the Fourth District on the same point. The conflict was held sufficient to give jurisdiction, but the ruling in this case being approved the writ was refused.

<p>Error to Court of Civil Appeals for First District, in an appeal from Galveston County.</p>

<p>1. Allegation of Partnership Not Denied.</p> <p>Suit in Dallas County for injury to freight shipped at Chicago for Dallas, against the Gulf, Colorado & Santa Fe Railway and the Atchison, Topeka and Santa Fe Railway Company. The latter denied the partnership alleged in the petition, but not under oath. Held, that upon liability of the former appearing, the latter could not complain that the judgment was rendered against it also for the whole amount.</p> <p>2. Connecting Carriers—Damage—Presumption.</p> <p>When plaintiff showed that the goods, shipped in good order at Chicago by the A. T. & S. F. Railway for Dallas, when tendered by the G. C. & S. F. Railway to him at Dallas were in a damaged condition,he made a prima facie case against said company for the full amount of the damage. In order to escape liability, in whole or in part, it devolved upon said company to show that such damage as it disputed its liability for occurred on- another line. Simply showing that the goods were damaged to some extent when delivered to it does not affect the prima facie case.</p> <p>ON REHEARING.</p> <p>3. Denial of Partnership—Pleading.</p> <p>The Statute (Art. 1265, par. 6), prescribes that an answer setting up “a denial of partnership as alleged in the petition" shall be verified by affidavit. -Such denial is sufficient if it alleges "that said (naming them) were not partners as alleged,” and under oath.</p> <p>4. Same—Specific Denial.</p> <p>A denial of the alleged partnership at the time of filing the answer is not a specific denial of the partnership at the date of the alleged contract under which the alleged liability arose.</p>

The suit was brought by Kerr and others to enjoin the city from selling certain lots for the payment of assessments for street paving. The writ of injunction was granted but was dissolved on final hearing by the trial court. Plaintiffs appealed and the judgment was reversed and cause remanded, and the city procured writ of error on the ground that the opinion practically settled the case.

Questions certified by Court of Civil Appeals for Second District, in an appeal from Wise County. The statement and question'certified are here given: “This suit was brought by the appellee, a private corporation, against S. C. Kilgore, as principal, and against B. F. Coleman, F. M. Wood and Tom Grace as sureties, on a certain bond guaranteeing the fulfillment of a contract on the part of Kilgore to construct a three-story stone building.

The suit was brought by Vick to recover land granted to Vince and claimed by plaintiff through conveyance from his heirs. Defendant claimed through the transfers from Vince to Dickinson and Dickinson to Cole, his ancestor, referred to in the opinion. The trial court excluded ■defendant’s evidence of title and instructed a Verdict for plaintiff, and on appeal by defendant this was affirmed by a divided Court of Appeals, and appellant secured writ of error.

<p>Question Certified by Court of Civil Appeals for the-Fourth District in an appeal from Johnson County.</p>

<p>1. Joint Contracts—Necessary Parties.</p> <p>Upon all joint contracts, under the statutes oí this State, either one or more of the joint contractors may be sued without joining all.</p> <p>2. Dismissal of One of Several Defendants.</p> <p>One or more defendants may be dismissed and the case be prosecuted as to the remaining defendants, with restriction that a necessary party defendant may not be so dismissed.</p> <p>3. Dismissal in Court of Civil Appeals.</p> <p>■When judgment in the trial court was improperly rendered against one of several defendants sued upon a joint contract and the defendants appeal, the appellee (plaintiff below) may dismiss in the Court of Civil Appeals as to the appellant against whom the judgment was erroneously rendered, and have the judgment below affirmed against the remaining defendants.</p>

Suit by McClelland Bros, against the Clarendon Land etc. Co. to recover as damages the value of cattle which died and depreciation in value of others which sickened from “Texas fever” communicated to them by * the cattle of defendant, which had broken into plaintiff’s pasture. Plaintiffs had verdict and judgment which was affirmed in the Court of Civil Appeals on an appeal by defendant company which now prosecutes writ of error.

<p>1. Reconvention—Jurisdiction of County Court.</p> <p>A plea in reconvention is in effect a suit against the plaintiff, ajid the County Court has no jurisdiction over a claim so pleaded when in excess of the amount over which that court has jurisdiction: such result is not avoided by splitting up the claim, e. g., offering to set off apart against the claim of plaintiff and seeking judgment for the balance.</p> <p>8. Attachment—Abatement of Writ.</p> <p>As the statute authorizes the writ of attachment before the debt becomes due, and as the writ issues upon the statutory affidavit and bond, a writ of attachment upon a debt not due can not be abated by plea showing that the petition erroneously states the debt to be overdue.</p>

<p>1. Insolvent Corporations—Attachment and Garnishment.</p> <p>A creditor cannot by garnishment or attachment subject the assets of an insolvent corporation to his own claim to the exclusion of other creditors.</p> <p>2. Same—Parties in Administering Assets.</p> <p>A pro-rata administration of the assets of an insolvent corporation cannot be effected by garnishment proceedings to which the other creditors are not parties.</p>

<p>Trust Deed or Assignment—Case Followed.</p> <p>A conveyance by an insolvent debtor to one of his creditors on its face a deed of trust, making provision for preferences among specified creditors, declaring the purpose to secure the payment of specified debts, and providing for the return of any surplus of the proceeds of sale to the grantor and that when that is done the instrument shall be null and void, is a deed of trust and not an assignment for the benefit of creditors. Tittle v. Vanleer, ante —, followed.</p>

Not having the transcript of the case, nor the opinion of the Court of Civil Appeals, the Reporter cannot give the facts nor the grounds of the action of the Court of Civil Appeals.

<p>Error to Court of Civil Appeals for First District, in an appeal from Galveston County.</p> <p>The opinion gives a full statement.</p>

Suit was brought by Moon Bros. Carriage Company and various other creditors of the Waxahachie Grain and Implement Company and was in the nature of a creditor’s bill to secure a pro rata distribution of the assets of that insolvent corporation.

■ The suit was trespass to try title to certain land, located and surveyed in 1853, hy virtue of a certificate granted to Gr. P. Humphreys, and patented to his heirs. M. J. Humphreys, one of the heirs, between 1874 and 1877 bought out the others, and in 1878 he married and, with his wife Christina, came from Indiana to Texas, where in the same year he died, living at the time upon a rented place, hut having begun some improvements upon the land in question.

<p>Certificate of dissent from Court of Civil Appeals, Second District, in an appeal from Tarrant County.</p> <p>Upon the opinion of a majority of that court the judgment was reversed and cause remanded for error in giving the charge copied in this opinion, Justice Hunter dissenting. On motion of appellee the point of dissent, as disclosed in the opinion, was thereupon certified to the Supreme Court. The opinion states the case:</p>

Suit by Pray against Strang on contract for building a house and to foreclose a mechanic’s lien. Plaintiff had judgment for his claim but the trial court refused foreclosure of his lien. On his appeal the Court of Civil Appeals reversed and rendered judgment foreclosing his lien on the house and lot. Appellee obtained writ of error.

Ebbob to the Court of Civil Appeals for the First District, in an appeal from Smith County.

<p>Error to Court of Civil Appeals for First District, in an appeal from '.Smith County.</p> <p>For statement of case see Morrill v. Smith County, ante.</p>

Anna Warren sued the City of Denison and the Denison Light and Power Company for personal injuries caused by her fall upon the sidewalk of Woodard Street from an abutting lot, the front of which was several feet above the walk, and upon which she had strayed by reason of the darkness and the manner in which the street had been graded. She recovered, against the city only, a judgment which was reversed by the appellate court on the grounds stated in this opinion.

<p>1. Quo Warranto. —Power of County Attorney.</p> <p>The County Attorney of Galveston County had no power under the Constitution • of the State to file an information in the nature of quo warranto against the I. & G. N. Ry. Co. for "exercising power not conferred by law” in taking possession of the Galveston, Houston and Henderson Railway, operating the same and taking freights. Such power is conferred upon the Attorney-General by art. 4, sec. 22 of the Constitution and the power is exclusive. (P. 564.)</p> <p>8. Same—Statute Unconstitutional.</p> <p>Article 4343, Rev. Stats., so far as it attempts to confer such power upon district and county attorneys, is unconstitutional and inoperative. (P. 565.)</p> <p>3. Same—Constitution.</p> <p>Article 12, sec. 4 of the Constitution does not apply to such case, as freight charges are legally collectable and it is only alleged that they are collected by the wrong corporation. (P. 565.)</p>

Certificate oe Dissent from Second District, in an appeal from Clay County. The judgment of the trial court was affirmed hy the Court of Civil Appeals in an opinion by Stevens, Associate Justice, but Associate Justice Hunter filed a dissenting opinion and on motion of appellant the ease was certified to the Supreme Court.

Plaintiff in error, Martha Jane Lee, recovered a judgment in the District Court of Harris County against the International and Great Northern Railway Company, for the sum of $3000, for the negligent act of defendant’s servants in charge of its switch engine, in running over' and killing plaintiff’s husband, who, in passing through the railway switching yards, had his foot caught and held in an unblocked frog.

Plaintiff in error, F. Brown, brought this suit against the Palatine Ins. Co. in the District Court of Ellis. County, to recover upon a policy of insurance upon his stock of goods which had been destroyed by fire. The policy contained the clause, copied in the opinion of the court, commonly known as the “iron safe” clause, and a failure to comply therewith was urged as a defense.

<p>Usury.</p> <p>A promissory note does not become usurious by providing for interest at the highest legal rate upon the amount of principal and interest due at maturity if not then paid, though such rate would exceed lawful interest upon the principal, such provision being in the nature of a penalty which the maker can avoid by complying with his contract. This rule is applicable to the case of a debt made pa3Table in a series of seventy-two monthly installment notes calling for interest after maturity only, the interest to maturity of each being included in the amount for which it was given and the whole subsequent series, to the extent of actual unpaid principal and overdue interest, becoming immediately due on default in three of the payments. (Pp. 599-600.)</p>

<p>Question certified by the Court of Civil Appeals for Third District, in an appeal from Llano County. The question is shown in the ■opinion.</p>

The suit was brought by Perkey to recover from the insurance company a loss by fire under their policy. Plaintiff had judgment in the trial court, which was affirmed on appeal.

Certified question from the Court of Civil Appeals for the Second District, in an appeal from Young County. The opinion states the question certified.

<p>1. Res Judicata—Two Issues—Judgment Silent as to One.</p> <p>Where the pleadings in a former suit put in issue plaintiff’s right to recover upon two causes of action, and the judgment awards him a recovery upon one but is silent as to the other, it is prima facie an adjudication that he was not entitled to recover upon such other cause. (P. 615.)</p> <p>2. Same.</p> <p>Such construction of the judgment plaintiff cannot escape except by showing that before its rendition he withdrew such issue or that the court refused to decide it. (P. 615.)</p> <p>S. Same.</p> <p>Evidence that no testimony upon such issue was introduced by him upon the trial but that after the "close of the argument he offered testimony upon it which was rejected because coming too late, does not tend to show a withdrawal, but rather establishes, from the whole record, a legal presumption to the contrary—that he refused to dismiss his claim.</p> <p>4. Same.</p> <p>Testimony of his attorney on the former trial, in connection with and reference to such facts, that “the question of rents was not put in issue,” will be understood as a mere expression of opinion as to the legal effect of his not introducing evidence; or, if meant as a statement that the issue was not raised by the pleadings, it was incompetent to contradict the record, though introduced without objection. (P. 616.)</p> <p>5. Same—Trespass to Try Title—Rents.</p> <p>In an action of trespass to try title plaintiff sued to recover the land and for rents. No testimony was introduced upon the latter issue nor was it withdrawn; but he had judgment for the recovery of the land, with nothing said about rents. In a subsequent suit for rents this judgment, pleaded as a former adjudication, was a bar to his -recovery of such rents as were sought to be recovered by his former petition. (P. 617.)</p>

<p>Contract—Monopoly—Consideration Unlawful in Part.</p> <p>J. contracted with a county to erect works for supplying water for county purposes in consideration of an agreement by the county to pay a sum of money and to grant to J. an exclusive right of way to lay piping for supplying the town of It. with water. J. executed his bond with sureties to perform his contract, and the county, having paid the money promised, upon his failure to comply, sued upon the bond to recover back the money paid and damages. Held:</p> <p>1. Such contract tends to create a monopoly and is violative of the Constitution, illegal and void, Const., art. 1, sec. 26; Brenham v. Water Co., 67 Texas, 561. (P. 620.)</p> <p>2. It cannot be ascertained how much of J.’s promise was based on the unlawful agreement, and where a promise is on several considerations one of which is unlawful, whether by common law or statute, the promise is void. (P. 620.)</p> <p>3. The contract being void the bond executed to secure it was void also. There could be no recovery against J.’s sureties (The liability of J. was not before the court.) (P. 621.)</p> <p>4. The case of Brenham v. Water Co., supra, questioned as to effect of acceptance of part performance of an unlawful contract. (P. 621.)</p>

<p>Certified question from the Court of Civil Appeals for Fifth District, in an appeal from Camp County.</p> <p>The opinion states the point certified.</p>

Hill County. Suit for recovery of land by House et al. against Reavis et al. Defendant had judgment in the trial court, which was affirmed on appeal.

<p>1. Charge of Court—Applying Law to Facts.</p> <p>Where the charge given correctly states the law on an issue, but does not apply it to the evidence, a party has a right (with proper limitations, for which see opinion), to prepare and have given a charge requiring the jury to find whether the evidence establishes the existence of any specified group of facts which if true would in law establish his plea and instructing them, if they find such group of facts proven, to find in his favor. (Pp. 637 to 639.)</p> <p>2. Same—Contributory Negligence—Intoxication.</p> <p>Intoxication contributing to the injury being plead as a defense, the court correctly stated the law of contributory negligence and instructed the jury that they could take plaintiff’s intoxication, if found as a fact, into consideration in determining whether he was guilty of contributory negligence, and that it furnished no excuse for a failure to exercise the care required of a sober man. Defendant, having requested a charge to the effect that if plaintiff was intoxicated and by reason thereof failed to exercise the care of a reasonably prudent person, and by such failure was injured, they should find for defendant, it was error to refuse such instruction. (Pp. 637 to 639.)</p>

<p>Error to Court of Civil Appeals for Second District, on a writ of error to Tarrant County.</p> <p>The opinion states the case.</p>

Certificate of dissent from the Court of Civil Appeals, Third District, in an original proceeding for writ of mandamus to the District Judge of Travis County. The opinion states the points certified.

On a former appeal in this case by the defendant insurance company the judgment against it, having been affirmed by the Court of Civil Appeals (25 S. W. Rep., 999), was, upon writ of error, reversed by this court (Ins. Co. v. Kempner, 87 Texas, 229). A second recovery in the trial court was on appeal affirmed by the Court of Civil Appeals. (Ins. Co. v. Kempner, 12 Texas Civ.

Certified question from Court of Civil Appeals, Second District, in an appeal from District Court of Armstrong County. The question answered and the provisions of the contract upon which it arose are stated in the opinion of the court.

Certified question from the Court of Civil Appeals, First District, in an appeal from County Court of Harris County. The question certified and facts necessary to its understanding are stated in the opinion.

<p>1. Jurisdiction of Supreme Court—Practically Settling Case,</p> <p>To show jurisdiction in Supreme Court to review a decision of the Court of Civil Appeals, reversing and remanding a case, the petition for writ of error must show, both that the judgment practically settles the case, and that the petitioner’s attorneys so state.</p> <p>2. Same—Case in Judgment.</p> <p>Plaintiff sued, alleging that she was wrongfully ejected from a railway train, after tendering a valid ticket, and, upon the conductor’s refusal to accept it, offering-to pay fare; defense, that the ticket was a limited one, sought to be used after the time had expired was disallowed by the trial court, which held the ticket unlimited. Plaintiff recovered; and on appeal therefrom the ticket was held to be a limited one, and the cause reversed and remanded for this error, without passing on other questions involved; appellee, plaintiff below, obtained a writ of error, stating in her petition that “The plaintiff in error and her attorneys of record allege that the judgment and decision of the Court of Civil Appeals * * * practically settles the case.”</p> <p>Held, that since the claim of plaintiff that she had tendered fare in cash was not disposed of by the opinion, and there was evidence in the record tending to support that theory, the ruling did not practically settle the entire case, and the Supreme Court was without jurisdiction.</p>

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Kaufman County.</p> <p>The suit was hy Sullivan to recover against the insurance company upon a policy on his house and furniture, which were destroyed hy fire. Defendant had a verdict and judgment in the trial court, which was reversed and the case remanded by the Court of Civil Appeals on plaintiff’s appeal. Defendant obtained a writ of error on the ground of conflict in the decisions.</p>

The suit was brought in the District Court by Walker and Lybrook against Bancks’ Administrator, to establish a judgment as a claim against his estate, and to fix a judgment lien against certain lands transferred by intestate by deed of gift to Anna C. Loring, who was made defendant. Interveners P. J. Willis & Bro., in their right as holders of claims against the estate, joined in attacking the conveyance to Loring, but contested plaintiff’s lien.

<p>1. Comparative Negligence Charge.</p> <p>The doctrine which permits a party who is himself guilty of negligence to recover because the defendant is guilty of a greater degree of negligence is not the law of this State. (See charge held erroneous because presenting in its simplest form the repudiated doctrine of comparative negligence.) A charge, given at request of defendant, that plaintiff’s negligence will prevent his recovery for negligence of defendant does not cover the same point nor cure the error. (Pp. 678 to 680.)</p> <p>2. Error in Charge—How Cured.</p> <p>Though the court gives on request a charge announcing a rule contrary to that of an erroneous charge already given, the error will not be cured by contradictory charges. The erroneous charge should be withdrawn or corrected. (P. 680.)</p> <p>3. Negligence—Injury to Child.</p> <p>Where a boy between twelve and thirteen years of age was permitted by the employes of a railway to ride upon a hand car which they were operating, and falling therefrom was run over, the following rules of law governed his right to recover damages for the injury:</p> <p>(1) Whether or not plaintiff was able to appreciate the danger of getting upon the car was a question of fact for the jury.</p> <p>(2) If he was not, and it was dangerous, but such an act as might be done by a child of his age and intelligence, and defendants’ employees invited or permitted him to ride there, defendant would be liable, though it had forbidden them to permit any one to ride on the car.</p> <p>(3) If plaintiff was able to appreciate the danger the following rules would apply: The burden was on him to prove that the employees had authority to permit him to ride there: The company’s rules forbidding them so to do were admissible evidence whether known to plaintiff or not: Proof of such authority would in such case affect the degree of care due to plaintiff under the circumstances, but not relieve him from the consequences of his own negligence: If the employees had no such authority defendant could not be held liable for the injuries, though they were guilty of negligence. (Pp. 680, 681.)</p>

The suit was brought by House et al. against Robertson et al., to recover a tract of land which defendants claimed and to set aside an execution sale of plaintiff’s title. The sale was sustained and defendants had judgment, which the Court of Civil Appeals affirmed on appeal by plaintiffs, who then procured writ of error. The facts appear in the opinion.

<p>Error to Court of Civil Appeals, Fourth District, in an appeal from Dallas County.</p>

Faulk et al. claiming the land in controversy under a patent to him, sued Sanderson et al., who claimed it by prior location unpatented. Plaintiffs had judgment for the land in the trial court. On defendant’s appeal the Court of Civil Appeals reversed and rendered judgment for appellants, the defendants below. Plaintiffs then procured writ of error..