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the transaction.-Miller v. Guaranty Trust & take all evidence it may deem necessary to as-
Banking Co., 207 S. W. 642.

certain the true value of property, the board
23(3) (Tex.Civ.App.) A creditor, who pays may employ a stenographer to take such evi-
off mortgages on property and takes a new dence.-State ex rel. Bybee v. Hackmann, 207
mortgage in the aggregate amount, will be S. W. 64.
subrogated to the rights of the old mortgagees
or against an existing inferior mortgage, al-

VI. LIEN AND PRIORITY.
though formal releases were made and record-

Ow501 (Tex.Civ.App.) The general rule is that
ed; the bolder of the inferior mortgage, of taxes are never a lien on property, unless ex-
whom the creditor had no actual knowledge, not pressly made so.-State v. Hunt, 207 S. W. 636.
being prejudiced thereby.-Sanger Bros. v. Elyi em 507 (Tex.Civ.App.) Under Const. art. 8. $
& Walker Dry Goods Co., 207 S. W. 348.
em 23(6) (Tex.Civ.App.) A grantee named in art. 7528, poll taxes and personal property

15, and Vernon's Sayles' Ann. Civ. St. 1914,
deed which never became effective, because the taxes do not become a lien on the real property
grantor during his life retained control there of the person against whom they were assess-
of, held not subrogated to the lien of vendor's ed, and cannot be enforced against a subse-
lien notes against the property, which he dis- quent grantee of such property. --State v. Hunt,
charged.-Eckert v. Stewart, 207 S. W. 317.

207 S. W. 636.
23(8) (Tex.Civ.App.) A transaction by
which a bank loaned money to contractors for

IX. SALE OF LAND FOR NONPAY.
payment of wages due laborers, which money

MENT OF TAX.
was so used, held not to constitute an equitable
assignment of labor debts, not subrogate the man 637. (Tex.Civ.App.) Under Acts 34th Leg.
bank to the laborers' claims against contrac- c. 147, § 1 (Vernon's Ann. Civ. St. Supp. 1918,
tor's surety.--Hess & Skinner Engineering Co. art. 7687a), the tax collector must mail to the
v. Turney, 207 S. W. 171.

address of the record owner of land which was
31(4) (Tex.Civ.App.) Payment of debt delinquent a notice showing the amount of tax-
through payment of judgment in mechanic's es appearing delinquent according to the rec-
lien suit and procuring assignment of judgment ords before the state can maintain an action to
held to create privity of contract between as-

recover such taxes.-State v. Hunt, 207 S. W.
sigror, assignee, and debtor, and a substirution

636.
of the assignee in the place of the assignor in

Under Acts 34th Leg. c. 147, § 2 (Vernon's
its relation to the debt.-Miller v. Guaranty Ann. Civ. St. Supp. 1918, art. 7687b), declar-
Trust & Banking Co., 207 S. W. 642.

ing that it shall be the duty of tax collectors
Bank which paid judgment in mechanic's lien to rely on the delinquent tax record, it is suf-
suit and took assignment of all rights of as- ficient for tax collector, in mailing notice of
signor held not a "volunteer" in payment of the delinquent taxes, to send notice to one who ap-
debt.-Id.

peared to be owner of land in delinquent rec-
Bank which paid judgment in mechanic's lien ords, and it is no defense, in action to recover
suit and took assignment under an arrangement such delinquent taxes from one who subse.
with one of judgment debtors that debt should quently became owner of land, that his title
be carried forward under a new arrangement appeared upon county records.--Id.
held subrogated to rights of assignor, so that,
where judgment was set aside because of lack XIII. LEGACY. INHERITANCE, AND
of service upon one defendant, the original debt

TRANSFER TAXES.
and lien would be recognized as a subsisting w889 (Tenn.) The only interest that neph-
charge upon the property.-Id.

ews and nieces had in estate before intestate's
Purchaser of notes at receiver's sale, part of death was the possibility that they might out-
consideration for notes being amount of debt live intestate, and assignment by them of
represented by judgment in mechanic's lien rights in estate did not transmit any vested
suit, which judgment was set aside, held entitled interest, and estate would be liable to collateral
by reason of doctrine of subrogation to valid inheritance and succession tax under Acts
lien on premises to secure payment of amount 1893, c. 174, and Acts 1893, c. 89, $ 7.-Tate v.
paid for notes with interest.-Id.

Greenlee, 207 S. W. 716.

905 (1) Tenn.) Where bill is filed in chan-
SUICIDE.

cery to settle an estate, clerk of county court,
See Insurance, 819, 825.

under Acts 1893, c. 174, $ 22, can maintain
petition in such suit to collect inheritance tax.

-Tate v. Greenlee, 207 S. W. 716.
SUPERSEDEAS,
See Appeal and Error, m1234,

TELEGRAPHS AND TELEPHONES.
SURETYSHIP.

See Commerce, 28; Constitutional Law,

297; Eminent Domain. Cm2; New Trial,
See Principal and Surety.

104; Pleading, One 291, 406.
SURVEYORS.

I. ESTABLISHMENT, CONSTRUCTION,

AND MAINTENANCE.
See Evidence, C83; Extortion, m 11.

Om 12 (Tex.) Order of Childress city council.

pursuant to Acts 30th Leg. (1st Ex. Sess.) c. 12,
SURVIVAL.

requiring physical connection between two phone
See Abatement and Revival, 48.

companies and interchange of service, helit
to authorize fair toll rates in addition to con-

nection charge fixed therein, and not to warrant
TAXATION.

requiring one company to accept, from other,
See Appeal and Error, 185; Descent and calls originating on its own line. --Southwestern
Distribution. 82;' Drains, m66; Ex- Telegraph & Telephone Co. v. State, 207 S. W.

308.
change of Property, w7; Judgment, enos
601; Levees, C2; Municipal Corporations, 24 (Tex.) Where two phone companies, or-
Cm 566, 567, 972, 980; Schools and School dered to make physical connection and inter-
Districts, 34, 39, 100.

change service pursuant to Acts 30th Leg. (1st

Ex. Sess.) c. 12, refused to do so, complaint of
V. LEVY AND ASSESSMENT. state seeking penalty therefor held not demur-

rable for failure to allege, as was the fact, that
(F) Equalization of Assessments.

one company had attempted to comply.--South-
Cm 450(1) (Mo.) l'nder Rev. St. 1909. & 11410, western Telegraph & Telephone Co. v. State,
empowering the state board of equalization to 207 S. W. 308.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
II. REGULATION AND OPERATION. cotenant, and assertion of adverse claims, must
37(9) (Tex.Civ.App.) It did not appear

be more certain and unequivocal in character
from telegram reading, "Ruth is not expected than is necessary in ordinary cases where no
to live unless change in condition," or from privity of estate exists, and notice of the ad-
telegram reading, "Ruth very bad. Can't live

verse holding must be brought home to the
long," that either was sent for the benefit of cotenant either by information or by acts of
the sender. -Western

Union Telegraph Co. v. unequivocal notoriety.-Stiles v. Hawkins, 207
Barrett, 207 S. W. 976.

S. W. 89.
Cw54(7) (Tex.Civ.App.) Those who deal with no 15(10) (Tex.Com.App.) The possession of a
telegraph corporations are entitled, if they in-cotenant, or tenant in common, will be presum-
sist upon it, to have their messages transmit. ed to be in right of the common title, and he
ted and delivered free from all conditions or

will not be permitted to claim protection of the
limitations, except those imposed by the law of statute of limitations unless it clearly appears
the land. - Western Union Telegraph Co. v.

that he has repudiated his cotenant's title and
Armstrong, 207 S. W. 592.

is holding adversely thereto.-Stiles v. Hawkins,
A rule of a telegraph company that tele- 207 S. W. 89.
grams should be written on certain forms, and Cw38(2) (Tex.Civ.App.) Where a part owner
the stipulations on the back of such forms, wrongfully withheld personal property, another
were not binding on the sender of a telegram: part owner could not bring action for the prop-
having no knowledge thereof, who telephoned Miller v. Fenton, 207 s. w. 631.

erty, but should sue for a partition thereof.-
a message, although the agent recorded the
message upon one of such blanks.-Id.
Own 65(1) (Tex.Civ.App.) In action by plaintiff

TENDER.
for damages due to failure to promptly deliver
to her son telegram with reference to serious See Insurance, 230; Mines and Minerals,
condition of plaintiff's daughter, the fact that m78; Specific Performance, 12; Trover
the company had notice that the telegram was and Conversion, 22.
sent for benefit of plaintiff sender held to
sufficiently appear from allegations of peti-em? (Tex.Civ.App.) A tender by the maker to
tion.-Western Union Telegraph Co. v. Bar- the payee of a note does not constitute a tender
rett. 207 S. W. 976.

as to the holder of the note, where the maker
Om 66(1) (Tex.Civ.App.) Those who deal with knows that the payee no longer has any au-
telegraph corporations are entitled, if they in- thority in the matter. - Thomas v. Derrick, 207
sist upon it, to have their messages transmit. S. W. 140.
ted and delivered free from all conditions or

Om 17 (Mo.App.) Where defendant tendered
limitations, except those imposed by the law and deposited in court sum of money and
of the land, and, when a surrender of any part costs, and it was refused by plaintiff's counsel,
of that right is claimed, the telegraph com- acceptance by plaintiff's counsel from the clerk
pany must be able to establish a valid agree; held, under the circumstances, not a partial

of the amount of the filing fee he had paid
ment to that effect.-Western Union Telegraph
Co. v. Armstrong, 207 S. W. 592.

acceptance of the tender, which would restrict
Em 66(4) (Tex.Civ.App.) In action by plaintiff plaintiff's recovery to the amount of such ten-
for damages due to failure to promptly deliver der.-Ogle v. W. M. Sutherland Building &
to her son a telegram with reference to serious Contracting Co., 207 S. W. 848.
condition of plaintiff's daughter, testimony
held sufficient to charge defendant with notice THEATERS AND SHOWS.
that plaintiff sender had an interest in prompt
transmission and delivery.--Western Union See Conspiracy, Om8, 18; Negligence, Om39.
Telegraph Co. v. Barrett, 207 S. W. 976.
ww68(1) (Tex.Civ.App.) Plaintiff could not re-
cover from telegraph company for mental an-

THREATS.
guish suffered by his wife, where, on learning
that his wife, away from home, among stran- See Criminal Law, C553, 655, 706; Homicide,
gers desired to bring on her mother's body, he

158.
wired her funds, which she received in time
to take train she had intended, though there
was delay causing her apprehension; anguish See Adverse Possession, em44, 60; Appeal and
resulting from apprehension of a' situation
which did not occur.-Western Union Tele-

Error, Omw193, 220, 346, 933, 1051, 1127;

Arbitration and Award, m31; Assignments,
graph Co. v. Deaver, 207 S. W. 972.
71 (Tex.Civ.App.) Verdict of $1,250.64 for

Om 85; Brokers, 46; Carriers, 32,

213, 229;
mental suffering resulting from being deprived

Chattel Mortgages, m117;
of opportunity to be with and nurse a sister

Courts, Emo 66, 93; Criminal Law, cm1038,
during her last illness and to be present at the

1111; Curtesy, Om8; Divorce, en 139, 254;
burial was excessive, and will be reduced to

Evidence, W41, 213, 271; Gifts, Om 16, 49;
$500.-Western Union Telegraph Co. v. Arm-

Homicide, Cum 166, 189, 325; Husband and
strong, 207 S. W. 592.

Wife, ww78, 205, 304; Insurance, em 17912,
668; Intoxicating Liquors, 187; Judg-

ment, 298, 341, 342, 853; Landlord and
TENANCY IN COMMON.

Tenant, in 277; Larceny, 15; Limitation

of Actions, 127; Lis Pendens, w4; Me-
See Executors and Administrators, mw129. chanics' Liens, Om 281; Mines and Minerals,

Om78;
II. MUTUAL RIGHTS, DUTIES, AND

Municipal Corporations, 138;

New Trial, em 152, 165; Pleading, 408;
LIABILITIES OF COTENANTS.

Quieting Title, m.12; Receivers, w90;
em 15(5) (Tenn.) Where the possession of a

Street Railroads, m 60; Trespass to Try
tenant in common was open and notorious and

Title, 25; Trusts, em 114; Vendor and
he cultivated for the statutory period, remov-

Purchaser, Om334; Wills, Ow481.
ed practically all the merchantable timber, sold 8 (Mo.) There is no fiction in this state
some 15 tracts off of the land, deeds being re-

that an entire term of court is, within the
corded in the register's office, and never made contemplation of the law, but a single day.--
nor was asked for an accounting, the posses. Cole v. Parker-Washington Co., 207 S. W. 749,
sion was adverse and the right of the other 766.
tenants was barred.–Taylor v. Blackwell, 207
S. W. 738.

TOLL ROADS.
em 15(7, 8) (Tex.Com. App.) Acts relied on by a
tenant in common in showing an ouster of his I See Turnpikes and Toll Roads.

TIME.

TORTS.

plaintiff admitted that in 1913, less than a

year after her deed to defendant, she learned
See Action; Assault and Battery, em43; Con- that he was claiming the land, a suit in tres-

spiracy, cm 8-18; Fraud, em 59; Libel and pass to try title not filed until latter part of
Slander, om 6–125; Municipal Corporations, | February, `1916, justified a finding that the

724-851; Negligence, 7–138; Plead- right of possession had been lost.-Grundy v.
ing, 369; Principal and Agent, w159; | Greene, 207 S. W. 964.
Trespass, 19–58; Trover and Conver-w35(2) (Tex.Civ.App.) Much latitude is al.
sion.

lowed in suits to recover the title and posses-
Ons 10 (Mo.App.) Picketing by members of la-sion of realty when plaintiff's petition is in
bor organizations for the sole purpose of peace-

the ordinary form of an action of trespass to
ful persuasion, argument, or entreaty is not

try title and is only met by a plea of not
unlawful or actionable.--Root v. Anderson, 207 guilty:-Grundy v. Greene, 207 S. W. 964.
S. W. 255.

In trespass to try title met only by a plea

of not guilty, either party may offer evidence
TOWNS.

by way of confession and avoidance, and, un-

der certain conditions, may prove that a deed
See Animals, Ow50; Assault and Battery, Porclied upon by his adversary is void because
92; Counties, eww1; Criminal Law, Ow1170. procured by fraud, or as the result of mistake.

--Id.
TRADE UNIONS.

41.(1) (Tex.Civ.App.) In trespass to try
See Conspiracy, 8, 18; Libel and Slander, title, where defendants claimed under a deed
80; Torts, 10.

by an alleged attorney in fact, and plaintiffs

filed affidavit that the deed was forged, the
TRAIN SHEET.

burden was on defendant to establish their

defense by a preponderance of the testimony:
See Evidence, 370, 383.

plaintiffs having shown title to the land and

being entitled to recover, unless they had part-
TRESPASS.

ed with title.-Lancaster v. Snider, 207 S. W.

560.
See Damages, 55; Ejectment, Cm95; In- Qmw47(1) (Tex.Civ.App.) In trespass to try
junction, m128; Master and Servant,

title, met only by a plea of not guilty, affirm-
89; Negligence, e39; Pleading, 52; ative relief to plaintiff, because the deed re-
Quieting Title. Cm44; Vendor and Purchas- lied upon by his adversary was void for fraud
er, 244; Trusts, w372.

or mistake, will be granted in response to ap-
II. ACTIONS.

propriate pleadings bringing himself within

the conditions that entitle him to a rescission.
(A) Right of Action and Defenses. -Grundy v. Greene, 207 S. W. 964.
em 19(1) (Ky.) In an action for damages for
cutting and removing timber on land, title to

III. DAMAGES, USE AND OCCUPA-
which plaintiff's claimed, plaintiffs can recover

TION, IMPROVEMENTS,
only on the strength of their own title, and not

AND TAXES.
on the weakness of defendant's title.-H. Fe53 (Tex.Com.App.) One who has never been
Davis & Co. v. Sizemore, 207 S. W. 16.

in possession of property, the subject of suit
C31 (Ky.) A "joint trespass" is where two for trespass to try title, and has never collected
or more persons unite in committing it, or or received any of the rents, is not personally
where some actually commit the tort, the oth- liable to plaintiff for rent.-Stiles v. Hawkins,
ers command, encourage, or direct it.-Ste- | 207 S. W. 89.
phens v. Schadler, 207 S. W. 704.

TRIAL.
(D) Damages.

See Boundaries, w 40; Continuance; Costs;
ww58 (Ky.) Where defendant entered upon Criminal Law, Om641-884; Jury; New
plaintiff's land, dug four post holes, tore down Trial; Reference; Stipulations, mi4; Ven.
and hauled away some fencing, cut down one
tree, and injured another, which furnished For trial of particular actions or proceedings,
shade to plaintiff's lot, damages for the tres-
pass in the sum of $50 was not excessive.-Mc- For review of rulings at trial, see Appeal and

see also the various specific topics.
Mahon v. Robinett, 207 S. W. 301.

Error.
TRESPASS TO TRY TITLE. II. DOCKETS, LISTS, AND CALEN.

DARS.
See Adverse Possession, w115; Appeal and

Error, Om1056; Arrest, Om63; Evidence, en ll(3) (Ky.) In surviving wife's action for
em 186, 317; Executors and Administrators, dower and distributable share of personalty,
ww129, 439; Husband and Wife, 132, involving question of whether ante-nuptial con-
273; Judgment, C566; Public Lands, tract relinquishing such rights had been pro-
174; Vendor and Purchaser, 236; Wit-cured by fraud, the chancellor properly trans-
nesses, Om149.

ferred cause to common-law docket for trial

by jury on issue of fraud.--Early v. Early, 207
1. RIGHT OF ACTION AND DEFENSES. S. W. 466.

4 (Tex.Civ.App.) Surviving wife and chil-
dren, suing in trespass to try title after de- III. COURSE AND CONDUCT OF
cedent's notes secured by a vendor's lien had

TRIAL IN GENERAL.
been barred by limitations, might satisfy the cam25(1) (Tex.Civ.App.) In action involving
debt or offer to pay it as a condition to can- ownership of attached property claimed by
cellation of surviving wife's deed to defend third party, where court ruled that burden of
ant, and so enable court to adjust their equi- proving title was upon claimant, claimant was
ties.-Grundy v. Greene, 207 S. W. 964.

entitled to open and conclude without invoking
cm 6(1) (Tex.Civ.App.) The holder of a nak- District and County Court Rule 31 (142 S. W.
ed legal title may maintain an action of tres- xx).-Frost v. Smith, 207 S. W. 392.
pass to try title.--Masterson v. Pullen, 207 am 29(2) (Ark.) In suit for labor perforined,
S. W. 537.

with counterclaim for money paid on team
II. PROCEEDINGS.

bought for plaintiffs, the exclusion of question

to seller of team with remark that it was a
C25 (Tex.Civ.App.) One seeking to repu. question of law and with inquiry whether de-
diate a contract for fraud or mistake must act fendant bad not proven himself out of court
promptly on discovery thereof and where was objectionable as an expression of opinion

ue.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
on weight of evidence.-Stallings v. Bradshaw, / released a defective brake, it was not error
207 S.W. 435,

to refuse an instruction for defendant, error

neously assuming that plaintiff knew, or ought
IV. RECEPTION OF EVIDENCE, to have known, of the defective brake, and
(A) Introduction, offer, and Admission of

that he moved the car without inspection.-:
Evidence in General.

Texas Midland R. R. v. Brown, 207 S. W. 340.

Where an employé of a third person was in-
46(1) (Mo.App.) Court did not err in

jured while attempting to block a moving car
sustaining an objection to question, where

upon which the brake was defective, an instruc-
counsel did not state to the court what he

tion, assuming contributory negligence on plain-
expected to prove by the witness.-William

tiff's part in going in front of the car, was
Wurdack Electric Mfg. Co. v. Elliott & Barry

properly refused; evidence showing that plain-
Engineering Co., 207 S. W. 877.

tiff thought it necessary to act as he did to
(C) Objections, Motions to Strike Oat, and

prevent accident to others on the track.-Id.
Exceptions.

194(1) (Tex.Civ.App.) In an action for de-
83(2) (Mo.App.) An objection that evi-

lay in shipment of live stock, where plaintiff

relies on negligent condition of switch track,
dence is "irrelevant and immaterial" is suffi-
cient, where the evidence is clearly immaterial

preventing loading, an instruction that the
and there is but one issue.--Sexton v. Lock-

degree of diligence required in construction

of main track is not the diligence required in
wood, 207 S. W. 856.

of evidence in

construction of switch
m85 (Tex.Civ.App.) Offer

track held properly

refused, as on the weight of the evidence.-
part consisting of hearsay is properly reject-

Kansas City, M. & 0. Ry. Co. of Texas v.
ed when offered as a whole.-McBride v. Kaul-

Bomar, 207 S. W. 570.
bach, 207 S. W. 576.
W 105(2) (Tex.Civ. App.) Though evidence of

194(8) (Tex.Civ.App.) The court in its
negligence not pleaded is admitted without ob-

charge could not assume as untrue proof suf-
jection, defendant's requested instruction that

ficient to support allegations as to actual ap-
it be disregarded, and that damages cannot be

plication of payments.-Lovelady v. Harding,

207 S. W. 933.
found by reason of such negligence, should be
given.-Jamison Gin Co. v. Measels, 207 S.

en 194(14) (Mo.App.) Requested instructions
W. 365.

that, even if defendants' embankment had slip-
Om 105(3) (Tex.Com.App.) A bare conclusion

ped and was seepy, they were not therefore
or opinion of witness, without basis of fact,

required to anticipate it would slide into the
has no probative force though not objected to.

creek, invades the province of the jury.--Bailey

V. Wabash Ry. Co., 207 S. W. 82.
-Webb v. Reynolds, 207 S. W. 914.
VI. TAKING CASE OR QUESTION

(B) Necessity and Subject-Matter.
FROM JURY.

om 203(3) (Tex.Civ.App.) Where a case is sub-

mitted either under a general charge or upon
(A) Questions of Law or of Fact in Gen.

special issues, a party is entitled to an af-
eral,

firmative presentation of an issue raised by
em 139(1) (Ky.) Where the evidence is such

pleadings and evidence.-Sherrill v. Union Lum-
that reasonable men would not draw different

ber Co., 207 S. W. 149.
conclusions therefrom, it is the duty of the 203(3) (Tex.Civ.App.) Defendant had the
court to direct the jury accordingly.-Citizens' | right to have his defense presented to the
State Bank of Greenup v. Johnson County, jury in an affirmative manner. -Quanah, A. &
207 S. W. 8.

P. Ry. Co. v. Lancaster, 207 S. W. 606.
139(1) (Tex.Com.App.) To authorize the
court to take a question of fact from the jury, (C) Form, Requisites, and Sufficiency.
the evidence must be of such character that

em 234(7) (Mo.App.) It was improper to in-
there is no room for ordinary minds to differem
as to the conclusions to be drawn from it.-

struct in effect that the burden was on plain-
Daugherty v. Wiles, 207 S. W. 900.

tiff to prove facts conceded by defendant.-
1 39(1) (Tex.Com.App.) The jury are the

Sexton v. Lockwood, 207 S. W. 856.
judges of the weight to be given the testimo-

m236(1) (Mo.App.) Provision of requested
ny.-Weisner v. Missouri, K. & T. Ry. Co., of

instructions, that in determining credibility of
Texas, 207 S. W. 904.

a witness his "general reputation for truth and
w 139(1) (Tex.Civ.App.) It is the province

veracity, chastity, and morality as shown by
of jury to pass on credibility of witnesses and

the evidence," may be considered, is unwar-

ranted.-Beck v. Metropolitan Life Ins. Co.,
weight of their testimony.-Falfurrias Mer-
cantile Co. v. Citizens' State Bank, 207 S. W.

207 S. W. 248.
568.

Om 240 (Mo.App.) In an action for the pur-
w 140(1) (Tex.Com.App.) The jury are the

chase price of an interest in a growing crop
judges of the credibility of the witnesses and

in the possession of defendant, an instruction
weight to be given the testimony.-Weisner v.

So worded as to create the impression that, in
Missouri, K. & T. Ry. Co., of Texas, 207 S. W.

to an agreement to sell and
901.

crop, something else must have been done in
w 140(1) (Tex.Civ.App.) It was the province

the way of a transmission or delivery of pos-
of the jury to pass upon the credibility of the

session, was argumentative and erroneous.--
witnesses.- Washington v. Austin Nat. Bank,

Sexton v. Lockwood, 207 S. W. 856.
207 S. W. 382; Falfurrias Mercantile Co. v.

m240 (Tex.Civ.App.) In an action for delay
Citizens' State Bank, Id. 568; Quanah, A. &

in shipment of live stock, where plaintiff re-
P. Ry. Co. v. Lancaster, Id. 606.

lies on negligent condition of switch track
145 (Tex.Civ.App.) Where plaintiff sued on

preventing loading, an instruction that the
contract, or in the alternative on a quantum

degree of diligence required in construction
meruit, he was entitled to the submission of

of main track is not same diligence required
a quantum meruit, although in his testimony as to switch track held properly refused as
he insisted that he only performed the services

argumentative in form-Kansas City, M. &
by virtue of the alleged contract.-Guyer V.

0. Ry. Co. of Texas v. Bomar, 207 S. W. 570.
Chapman, 207 S. W. 428.

(D) Applicability to Pleadings and Evi-

dence.
VII. INSTRUCTIONS TO JURY.

em 248 (Tex.Civ.App.) Where trial judge
(A) Province of Court and Jury in Gen. | sought to leave to the jury, not only the find-
eral,

ings of facts, but also whether in law they
en 191(8) (Tex.Civ.App.) Where an employé were sufficient to render further relation of
of a third person was injured while blocking a husband and wife insupportable, he should
coal car moving by gravity after plaintiff had I have carefully applied the law to the facts, and

addi

ly the

Ous

not simply announced abstract propositions of

(E) Requests or Prayers.
law in his charge.-McNabb v. McNabb, 207 S. 255(12) (Ark.) In real estate broker's
W. 129.

action for commission where only conflict of
ww252(1) (Tex.Civ.App.) A requested in-

evidence was on question of whether broker
struction was properly refused, where there
was no proof upon which to base it.-

Missouri defective because of failure to submit ques-

procured purchaser, court's charge was not
Iron & Metal Co. v. Cartwright, 207 S. W. 397.

tion of whether in making sale owner acted in
om 252 (8) (Tex.Civ.App.) In action for inju- good faith, where specific instruction submit-
ries sustained by pedestrian when run down ting such issue was not requested.-Harris &
by an automobile, giving of a special request- White v. Stone, 207 S. W. 443.
ed charge on discovered peril held not errone-260(1) (Tex.Civ.App.) It is not error to

as against objection that there was no refuse an instruction on a matter sufficiently
evidence that chauffeur saw plaintiff.—Burnett covered in the court's main charge.- Missouri
V. Anderson, 207 S. W. 540.

Iron & Metal Co. v. Cartwright, 207 S. W.
In action for injuries sustained by plaintiff 397.
pedestrian when run down by an automobile, ma 260(1) (Tex.Civ.App:) Refusal to give in-
held, under the evidence, that court did not structions requested is not reversible error,
err in refusing to give special charge submit, where the substance, thereof has been given
ting issue whether chauffeur was an employé in other instructions.-Lancaster v. Snider, 207
or servant of defendant.--Id.

S. W. 560.
w252(11) (Tex.Civ.App.) Refusal of in- im 260(5) (Mo.App.) Requested instruction, to
stru ion on contributory negligence of serp. the effect that plaintiff administrator could re-
ant injured was not error where there was no cover only if deceased's son was his mother's
evidence of such negligence.-San Antonio agent when he made demand to repurchase
Portland Cement Co. v. Gschwender, 207 S. shares of stock, held correctly and fully cover-
W. 967.

ed by instruction given by the court.-Grass-
252(12) (Mo.) In action on contractor's muck v. Ehrler, 207 S. W. 287.
surety bond, defendant's requested instruc- m260(8) (Tex.Civ.App.) It was not error to
tion on measure of damages, predicated on the refuse an instruction that defendant railroad
view that the evidence shows plaintiff's vio- was not liable if plaintiff's horse was more
lation of a building contract so as to release readily frightened than an ordinary horse.
surety from injury to plaintiff by reason of where the issue of contributory negligence was
its overpayments to contractor, was properly sufficiently covered by an instruction given.--
refused, where the undisputed evidence show- Texas Midland R. R. v. Butler, 207 S. W. 314,
ed that plaintiff had not overpaid contractor. w260 (8) (Tex.Civ.App.) Where under the in-
--Southern Real Estate & Financial Co. v. structions the jury could find for plaintiff, a
Bankers' Surety Co., 207 S. W. 506, 513. railroad fireman, injured in a collision, only
Cm 252(20) (Mo.App.) Instruction should not if the engineer was negligent in failing to dis-
submit the question of permanency of plain cover the open switch, etc., held, that the re-
tiff's injury, there being no evidence that it fusal of further instructions that the engineer
would be or was permanent.-Colby v. Thomp. did to stop the train after discovering the

was not negligent in doing no more than he
son, 207 S. W. 73.
253(3) (Mo.App.) An instruction directing based on the fact the switch was open, etc.,

open switch, that negligence could not be
à verdict in action under Rev. St. 1909, $ 3150. was proper.-Lancaster v. Mays, 207 S. W.
against a railroad for flooding from insufficient

676.
drains and opening, ignoring the question of it 261 (Tex.Civ.App.) Requested charge that
being from an unprecedented rain, is errore-

acts or quarrels, the result of sudden outbursts
ous.--Riffe v. Wabash Ry. Co., 207 S. W. 78. of temper, are not grounds for divorce, where
cm253(3) (Mo.App.) A defense in action not correct in its entirety, was properly re-
against railroad for fooding land from embank: fused, but sufficiently called court's attention to
ment sliding into creek being unprecedented omission.-McNabb v. McNabb, 207 S. W. 129.
rainfall, of which there was evidence, instruc-261 (Tex.Civ.App.) Where instructions are
tion covering entire case and directing verdict requested as a whole, some of which are in-
ignoring that question is erroneous.--Bailey v. consistent with each other and others obvious-
Wabash Ry. Co., 207 S. W. 82.

ly improper, the court need not separate the
253(5) (Mo. App.) In an action on a note good from the bad and is justified in refusing
which defendants claimed had been discharged, them all.-St. Paul Fire & Marine Ins. Co. v.
where it appeared that the holder had sent Pipkin, 207 S. W. 360.
the same to a bank for collection and received
from it the amount due, and it further appear- (G) Construction and Operation.
ed that the note passed into the possession of 295(6) (Mo.App.) It cannot be said that,
a stranger thereto, who transferred it to taking the instructions as a whole, there was
plaintiff, an instruction that if the holder sent
it to a' bank for collection and the amount self authorized a verdict against a railroad for

no error where one instruction in and of it-
thereof was paid to the bank and remitted to
the holder, plaintiff could not recover, held er- gard to whether the flood was unprecedented,

overflow from insufficient opening, without re-
roneous, disregarding the question whether a though another instruction submitted that ques-
third person acquired the note.--Stark

tion.-Riffe v. Wabash Ry. Co., 207 S. W. 78.
Scherf, 207 S. W. 863.

mm 296(3) (Ky.) In servant's action for in-
w 253(8) (Mo.App.) Instruction that there juries, error in instruction defining employ-
could be no recovery if deceased's son, when er's duty to be to keep elevator in reasonably
and if he made a demand on defendant to re- safe condition held cured by limiting right to
purchase stock, was not the agent of deceas-

recover to negligent breach of duty, with prop-
ed was properly refused, since plaintiff admin-
istrator could have recovered if jury believed Mills Co. v. Fields, 207 S. W. 477.

er definition of negligence.-Lexington Roller
that deceased herself made such demand.-

In servant's action for injuries, instruction
Grassmuck v. Ehrler, 207 S. W. 287.

was not erroneous as failing properly to quali-
253(10) (Mo.App.) In replevin to recover fy right of recovery, where such qualifications
materials and tools furnished under a contract were correctly set out in other instructions,
for the manufacture of metal cabinets, an in- and criticized instruction closed with state-
struction requiring the jury to find facts enti- ment requiring finding under such other in-
tling plaintiff to possession of the property un- structions.--Id.
der the contract was not insufficient as ignor-296(3) (Tex.Civ.App.) Contention that from
ing performance of the contract on plaintiff's special instruction given jury might have be-
part.-Ideal Reversible Hinge & Cabinet Co. lieved that railroad company owed plaintiff
v. Metallic Specialty Mfg. Co., 207 S. W. 273. I employé no duty even after discovering his per-

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