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could not recover such damages, because at mistake. Under such circumstances plaintiff the time they accrued he had no license from cannot fall back upon the rule that where the state to conduct the business. This is

This is the original contract was verbal and entire, not a case in which the plaintiff seeks to re- and a part only reduced to writing, the pacover on account of a contract made in con- rol part may be shown by oral evidence. ducting a business without license, but one That rule was never intended for the purpose in which plaintiff, intending to go into busi- of adding other property to that mentioned ness, made a contract for that purpose, which in a conveyance when the parties undertake was breached by the other party. He was to make the written instrument cover the not required to pay an occupation tax until entire transaction.

entire transaction. When a mutual mistake he engaged in the business, and this he claims is made in describing the property transferred he was prevented from doing until June 11th the remedy is to bring an action to reform on account of the city's breach of the con- the conveyance. Clark & Plumb v. Gregory, tract. The evidence warrants a finding that Cooley & Company, 87 Tex. 191, 27 S. W. on June 11th, the very day on which he be- 56; Coverdill v. Seymour, 94 Tex. 9, 57 S. gan business, he paid the occupation tax, W. 37. Plaintiff cannot prove his title to but the receipt was not issued until June Boston's half interest in the claims by pa30th. The receipt showed that the time for rol testimony conflicting with a written inwhich payment was made began on June strument by which the parties undertook to 11th. As the assignment does not relate to state their contract, and such parol evidence any damages save those claimed for the time of ownership should have been excluded. If preceding June 11th, we need not consider it was desired to reform the instrument for those accruing between June 11th and June mutual mistake, and in the same suit recov30th. The law does not preclude him from er thereon, the petition should have contained recovering the damages suffered by reason appropriate allegations, as contended by deof the breach of the contract merely because fendant, and in addition Boston should be a he failed to pay the occupation tax for a pe- party to the suit, so that the reforming the riod of time in which he was not engaged instrument would be binding upon him. The in the business. Even had this been a case sixth and seventh assignments of error are where suit was brought for money due on ac- sustained. count of the conducting of the business, it [11, 12] Appellant contends that its represeems plaintiff could recover, as the statute sentative, Burks, had no notice or knowledge imposing an occupation tax upon the thea- that plaintiff had contracted with a vaudeter business was passed for the purpose only ville troupe for performances beginning June of raising revenue. Ft. Worth & D. C. Ry. 1 and ending June 7, 1909, and that he would v. Carlock & Gillespie, 33 Tex. Civ. App. 203, suffer loss if said troupe was unable to ex75 S. W. 931; Watkins Land Mortgage Co. hibit. The evidence shows that Burks had v. Thetford, 43 Tex. Civ. App. 537, 96 S. W. notice before the breach of the contract that 72; Amato v. Dreyfus, 34 S. W. 450; Cyc. the theater was intended to be used for vol. 25, p. 633. The assignment is overruled. vaudeville performances, and that a troupe

[9, 10] Plaintiff testified to the transfer by had been procured by Tumlinson & Boston, Boston of all of his partnership interest in but there is no evidence that he was informthe theater business to plaintiff, including all ed, at the time or prior to the making of the claims due the firm, and stated that the contract, that the theater would be used for transfer was in writing. Afterwards plain- that kind of exhibitions. He testified that tiff was recalled, and he then testified that he knew they intended to use it for moving he had found the transfer and ascertained picture exhibitions. It cannot be held that that it did not include a transfer of the it was within the contemplation of the parclaims due the firm; that this was a mis- ties that a breach would cause damages on take, for the entire agreement between him account of salaries to be paid members of and Boston included the transfer to himself a vaudeville troupe, when it was understood of all claims as well as all personal prop- that the business to be conducted was that erty. This testimony was objected to on the of a moving picture show. Notice given aftground that there was no allegation in the er the contract is made, though prior to the pérition to the effect that the word, "claims,” breach thereof, is not sufficient to entitle a had been left out of the transfer by mistake, party to recover special damages for breach and therefore the testimony was inadmissi- of contract. Railway v. Belcher, 89 Tex. 428, ble. It was not shown by plaintiff that the 35 S. W. 6; Terrell, Atkins & Harvin v. Procinstrument on its face purported to evidence tor, 172 S. W. 1001. The eighth assignment only part of the transaction, nor does plain- of error is sustained. tiff's testimony show that they did not un- [13] Appellee testified that his loss of dertake to put in writing the entire trade be- profits during the time they ran the show tween the parties. On the contrary his tes- without current from defendant was $500. timony shows that it was the intention of This was his estimate for the entire time, the parties to embrace in the written instru- and he testified that at first the attendance ment the entire transaction, and that the was very good, but gradually fell off. It loss for each night separately, nor would of the agreement was omitted except that reanything have been gained by having him do lating to claims. The witness did not testify SO. Appellant contends that appellee testi- that the dissolution of the partnership was fied to a loss of $15 per night, but admit- not provided for in the instrument, nor that ted that there was no loss during several of the consideration was not fully set out, and the first nights, and therefore the evidence it appears that while he uses the word, is uncertain. Appellee did not testify to his “deed” in lieu of "convey" or "transfer," loss of profits being $15 per night during the the instrument not only conveys land, but time he actually ran his show, but that he also personal property. It is also apparent estimated his loss of profits at $15 per night that the witness does not undertake to prove during the week the vaudeville troupe was not an oral contract of which only a portion was able to show on account of lack of lights. intended to be reduced to writing, but exHad he sued for $15 per day for the time pressly says the writing was intended to covhe ran the theater with his own power, the er the matter of claims, and that such matter amount would have been about $1,100, in- was omitted only because of a mistake on the stead of $500. The jury must have found for part of both parties. We cannot say from loss of profits during such time in the sum his testimony that the written instrument on of at least $455, in order to arrive at its ver- its face purports to express only a part of dict, and we find that the testimony supports the transaction, and his testimony shows such finding, and overrule the ninth and affirmatively that the instrument was intendtenth assignments of error.

ed to cover the contract relied upon by him The judgment is reversed, and the cause to show his ownership of the claim sued upremanded.

on. It is frequently the case that only those

portions of a contract are reduced to writing On Motion for Rehearing.

which evidence the transfer of land, or Appellee has filed a remittitur covering which evidence the consideration, and the the item of $100 special damages mentioned rule relied upon by appellee is well recogin disposing of the eighth assignment of er- nized, but the facts do not bring this case ror, and his motion for rehearing is there within the rule. fore directed entirely to the ruling made in

It is of course true that often the written sustaining the sixth and seventh assign- instrument is of such a nature that it shows ments of error.

conclusively, when considered with the tes[14] He contends that the transaction be- timony relating to the nature of the transtween himself and Boston consisted of: (1) action leading up to its execution and delivThe sale of (a) realty, (b) corporeal personery, that the entire agreement or contract al property, (c) an interest in a partnership, was not intended to be embraced therein. (d) claims, accounts and other choses in ac. But the testimony in this case fails to show tion; (2) the agreement of Boston to make a such an instrument, but shows a "transfer” cash payment and to assume the payment of which might well have embraced the entire the partnership debts; and (3) the dissolu- contract, and which appellee admits was tion, liquidation, and settlement of a copart- intended to include the contract relied upnership. He contends that he corrected his on, and would have included same had it testimony so as to show that such was the not been omitted by mistake.

The motion is overruled transaction, and that a valid parol transfer was made of the chose in action. He contends, further, that only a part of the entire transaction was reduced to writing, and that the written instrument does not purport to MISSOURI, K. & T. RY. CO. OF TEXAS v. carry into effect, or express in writing, the

LOVELL. (No. 8227.) entire transaction. The instrument does not (Court of Civil Appeals of Texas. Ft. Worth. appear in the record. Appellee designated it

June 19, 1915. Rehearing Denied as a transfer, which mentions that Boston

Oct. 16, 1915.) "deeds” to appellee all of his personal prop-1. RAILROADS C 443—OPERATION-CARE REerty, including the "Airdome," that he has QUIRED- LIABILITY. nothing to do with the Airdome. He testi- Under Vernon's Sayles' Ann. Civ. St. 1914, fied, further, that the understanding with shall be liable to the owner for the value of

art. 6603, providing that railroad companies Boston was that Boston was to "deed" over all stock killed or injured by the locomotive all the rights and claims and property, and and cars of the company in running over their he, Tumlinson, was “to assume all indebted- respective railways, and that, if the railway

company fences its road, it shall be liable only ness on the thing"; that he did not know for injuries resulting from a want of ordinary why the ansfer of claims was not included care, there is no prima facie case against the in the instrument; that it was a mistake, a railway for the death of a horse which fell mistake by both of them; that he first found through a trestle on the defendant company's

right of way, upon which it went through a deout that morning that the written transfer fective fence. did not include expressly the word, "claims."

[Ed. Note. For other cases, see Railroads, This testimony does not show that any part cent. Dig. $$ 1608-1620; Dec. Dig. Om 443.]

2. APPEAL AND ERROR O907-PRESUMPTIONS, said animal was not struck by any locomo

-MATTERS NOT SHOWN BY RECORD-STOCK tive or car belonging to the defendant, and LAW.

Where the record of a case does not show said injury and damage was not the result whether the stock law prohibiting horses and of, or caused by, any locomotive or car other animals from running at large was in striking the animal, but that said injury and force, the court on appeal will presume that damage was caused solely by said animal goit was not in force.

[Ed. Note.-For other cases, see Appeal and ing onto said bridge and falling between the Error, Cent. Dig. $2899, 2911–2916, 3673, cross-ties thereof, the defendant is not in 3674, 3676, 3678; Dec. Dig. On907.]

law liable therefor. 3. RAILROADS Ow425-INJURY TO ANIMALS- [1] The evidence showed that at the place PROSIMATE CAUSE.

where the accident occurred the right of Where several horses got onto a railroad right of way through a defect in the fence, way runs east and west, and is crossed by a and were frightened by a train so that part of third-class public road running north and them broke through the fence, while others south; that the right of way is fenced, and crossed a bridge over a stream, and one of the that on the north side of the intersection of latter, after the train had passed, attempted to cross back over the bridge to rejoin its the right of way and the public road the companions, and fell through and was so in- railway company had theretofore kept and jured that it had to be killed, the attempt to maintained a wire gap or gate, but that this recross the bridge was the proximate cause of the injury, and not any negligence of the rail-gate was down at the time the horses enterroad company in the construction or mainte-, ed the right of way from the north and was rance of the fences or bridge.

out of repair, and had been for some time [Ed. Note.-For other cases, see Railroads, previous thereto; that on the south side of Cent. Dig. 88 1527-1533; Dec. Dig. 425.]

the right of way there was another gate, Buck, J., dissenting.

which was closed; that a short distance Appeal from Clay County Court; W. T. from the intersection of the road with the Allen, Judge.

right of way eastward there was a bridge or Action by G. W. Lovell against the Mis- culvert some 25 or 50 feet long extending souri, Kansas & Texas Railway Company over a creek, and that from each end of the of Texas. From a judgment for plaintiff, culvert, and on both the north and south defendant appeals. Reformed and affirmed. sides thereof, there was a fence extending

Arnold & Taylor, of Henrietta, and C. c. in an oblique direction to the right of way Huff, of Dallas, for appellant. Wantland & fence; that the oulvert was from 10 to 15 l'arrish, of Henrietta, for appellee.

feet from the ground, or the bottom of the creek,

John Choate testified: BUCK, J. Appellee, as plaintiff, filed this suit in the county court of Clay coun

"I was about 1,000 yards from the crossing

when the east-bound local train came along ty, alleging damages for the killing by going towards Denison. My attention was atdefendant railway company of one brown tracted by the loud whistling of the train. I mare of the alleged value of $150, and in- looked down toward the train, and saw the jury to four other horses in the sum of $20 toward the east, and it was right behind the

train after it had passed the crossing, going each. He alleged that on or about the 22d horses, whistling as loud and as fast as it day of August, 1914, these horses got out of could and was shooting out steam that was the inclosure without his fault, and got on blowing right out behind the horses. It ran defendant's right of way, and became fright-fence that leads up to the culvert and clear

some of the horses through the right of way ened at a passing train over defendant's rail-on beyond east of the culvert, and three of the way, and that the unusual, violent, and negli- horses ran through the right of way fence over gent blowing of the whistle and sounding of into the place owned by Mr. Bear, and three

of them ran into the right of way fence west the bell caused three of the animals to run of the culvert, and turned back down inside into and through and over a fence extending of the right of way. In this way three of the from defendant's right of way to a certain horses were left in the right of way, and three culvert or bridge therein, and which were way that the three in the right of way could get

of them in Mr. Bear's pasture, and the only thereby cut, bruised, and injured in the sum back to where they came from, or to where the of $20 each, and that one of said horses was others were, was for them to either go through thereby caused to enter upon the said cul- the right of way fence or to follow the right of vert or bridge, and was thereby scratched, way fence onto the culvert and go over the cul

." bruised, and injured, to its damage in the sum of $20, and that one brown mare was

Henry Sebert testified in the main as did caused to go upon said culvert or bridge and the last-named witness as to how the horses get caught therein between the openings be- got through the fence or fences, except that tween the cross-ties, and was so seriously he testified that after the east-bound train injured that the defendant's employés killed had passed the three horses which had got her.

by the culvert and were still in the right of No complaint is made of the judgment for way turned back, and that: $330, except as to the item of $150 for the

“Between the time the west-bound passenger mare killed. The defendant pleaded in the the other horses, two of them in the right of

came and the east-bound passenger came I saw court below, and here urges, that because way, and three of them in Mr. Bear's pasture

*

or field. They were all cut up pretty badly. I mare in question, it would be liable under I don't know how this mare got onto the trestle, the common law, and he cites, among other as I did not see her go there.

My judgment is that the train could not have pass- cases, the case of Railway Co. v. Dixon, 49 ed over her and left her in that condition. The Tex, Civ. App. 506, 109 S. W. 978, which only way that the three horses that I saw on holds, in effect, that where a railroad comthe east side of the culvert could have gotten back to where they came from or to where the pany erects a fence along its tracks it owes other horses were would have been to go over to the adjacent owners the duty to exercise that culvert or through the right of way fence.” ordinary care to keep the fence in proper

From this testimony it would appear that condition, and that, where it fails so to keep one east-bound train passed before and one its fence, and horses, escaping, get onto the after the west-bound train.

track and are frightened by a train, and run C. C. Harbison, section foreman, testified onto a bridge and are injured by falling for the defendant:

through the bridge, the negligence in not “Our crew killed the mare_after she had been keeping the fence repaired is the proximate dropped from the bridge. I saw the mare at cause of the injury, and that the railroad

. good ways off, but at the time she went over company is liable therefor. It is further held the trestle the train was not there. She fell in that case that, where a railroad company through the trestle without the train striking fences its right of way, it assumes the duty her, and no train struck her at all. When she of keeping it in proper condition and repair, went onto the trestle she was going back from where she had come--back to where the other and that the gate into the right of way may horses were. The only way she had to get be treated as a part of the right of way back was to go over the trestle or through the fence. This latter holding is limited to cases right of way fence.

where, as in this case, it is not shown that It will be seen from the evidence quoted, the gate was installed for the benefit of the which is supported by other evidence in the adjacent landowner. case, that, so far as the mare that was killed

It is held in Railway Co. v. Hughes, 68 is concerned, the injury to her, which result- Tex. 290, 4 S. W. 492, and other cases coned in her death, was caused by an attempt struing article 4528, Revised Statutes of on her part to walk the trestle in an effort 1895, which in the main contains the proto get back to the west side thereof, and that visions now in article 6603, supra, that, while in doing so she fell through and was so bad- no absolute liability results when the right ly injured that she had to be killed. It is of way is not fenced, unless there is a physievident from the testimony in the case, and cal contact of the moving engine, or a part of we so find, that she was not killed by coming the train, with the animal killed or injured, in contact with a locomotive or train of de- yet that a liability might arise on account of fendant railway, and therefore there is not negligence, although there is no contact of shown a prima facie case of liability on the the animal with the moving train. The opinpart of the railway, as provided in article ion in the Dixon Case goes on to say: 6603, Vernon's Sayles' Tex. Civ. Stat., which

"The railway company has seen fit to fence reads as follows:

its right of way, and, if by its negligence it "Each and every railroad company shall be kas permitted the fence to become defective and liable to the owner for the value of all stock stock to wander upon the track, it presents a killed or injured by the locomotives and cars case in which it is not the absence of the fence of such railroad company in running over that makes it liable, but a case in which its their respective railways, which may be recover- negligence was the proximate cause of injury. ed by suit before any court having competent When the track is not fenced, animals upon it jurisdiction of the amount. Such liability shall or near it have the means of escape from injury also exist in counties and subdivisions of coun- which do not exist when the track is fenced on ties which adopt the stock law prohibiting the both sides; and, when such is the case, animals, running at large of horses, mules, jacks, jen- which are permitted to enter upon the right of nets and cattle: Provided, however, that in way and track between the two fences are more all cases, if the railroad company fence its exposed to danger and more liable to sustain road, it shall only be liable for injury resulting injury than would be the case if they were not from a want of ordinary care."

confined to the narrow limits of the right of [2] The record is silent in this case as to way." whether or not the stock law prohibiting [3] But can we say that in the instant case horses and other animals from running at the plaintiff has alleged such negligence as large was in force in Clay county at the would make the railway company liable, and, time of the accident. Therefore we are jus- if so, does the evidence sustain such allegatified in concluding that it was not. But it tions? Plaintiff alleged negligence of the deis provided in the article of the statute above fendant in the following language: quoted that:

"That there is no fence, cattle guard, or ob"If the railroad company fence its road, it struction to prevent stock from passing over shall only be liable for injury resulting from a said dirt road going south and on said right of want of ordinary care."

from the north, nor from going upon de

fendant's said right of way and railroad track, It is not contended by appellee that the both easterly and westerly, and, in fact, upon defendant company is liable absolutely for reaching said right of way over said dirt road the injury complained of, or that his action from the north, such stock could find no outis predicated upon this article. It is urged let, except upon and over said right of way

or 'to return north over said road, and plaintiff that, if the railroad company failed to exer- says that the failure to have a fence or cattle said dirt road fences with defendant's right of between the ties, and received the injuries way fences on the north side of said right of necessitating her being killed. In the judgway to the defendant's railroad, and proper cattle guards, is negligence on the part of de- ment of the majority, this accident and infendant, and that by leaving the matter in the jury was not such as resulted in direct secondition it is now and was in at the date of quence from any negligence of the railway fence, cattle guards, or obstruction, formed and company alleged by plaintiff, but was due to created a 'trap' or 'pocket to catch or en- an independent and nonconcurring cause, to snare stock onto said right of way and between wit, the unusual and not to be anticipated the said railroad track proper and the wire notion that the mare took to undertake such fences of defendant on the north and south side thereof, all of which plaintiff says is neg- a hazardous feat. Moreover, the majority ligence, and the proximate cause of plaintiff's are not satisfied that the evidence is suffistock getting upon said right of way and being cient to show notice to the defendant of the killed and injured, as further alleged herein."

condition of the north gate. In subsequent paragraphs plaintiff alleges Therefore, in the judgment of the majority, the construction of the fences at either ex- the railway company in no event could be tremity of the trestle or bridge or culvert liable for the value of the animal killed. The connecting with the right of way fences at judgment of the trial court is reformed so as either end and on both sides, and alleges to exclude the item of $150, and, as thus that such construction constitutes a "pocket" reformed, is affirmed in the sum of $80, with or "trap" for stock which have come on the interest at 6 per cent. from date of judgment. right of way through said open gate or be- The costs of this appeal are adjudged against cause of the absence of the gate. He fur- appellee. ther alleges negligence in the construction Reformed and affirmed. of the trestle, in that the ties are so placed that they permit the hoofs and limbs of BUCK, J. (dissenting). I cannot agree horses and cattle to slip or pass between with the views expressed in the majority them.

opinion, nor in the disposition of this case. We find nothing in the record to suggest if the railway company is liable for the inthat the trestle in question was negligently juries sustained by the horses which ran constructed, or constructed differently from through the fences to escape from what, no those commonly used. If the death of the doubt, seemed to them an approaching monmare in question had been caused at the ster, emitting loud and frightening noises, time of the passing of the east-bound train, and belching forth clouds of smoke and steam, and when three of the horses got over into then it seems to me that no less is it liable the field north, and three others, including for the death of the mare in question, which, the mare in question, either got through having escaped from the threatening and imboth of the fences on the north side of the minent danger, as she saw it, followed the trestle and joining the ends of the trestle natural promptings of her equine nature to with the right of way fence, or passed over get back to her companions by the only means the trestle itself, and the witnesses seem to of egress that presented itself. To one who leave the matter in doubt as to which means knows horses and understands their habits was employed, we would feel justified in sus- it would seem that, under the circumstances, taining the judgment as to the $150 item, and it must have been reasonably anticipated to hold that the act of the railway company, that in all probability she would have atand those in charge of its engine, in causing tempted to do the very thing she did do, not the engine to whistle, blow off vast quantities realizing the danger from the gaps in the of steam, and the ringing of the bell, there- walkway selected until after she started onby frightening the animals, and causing them to the trestle, and it was too late to turn to run through the fences and onto the tres back. I believe the accident in question is tle, was the proximate cause of the injuries; a result which naturally flows in a continbut the damage complained of as to this par- uous sequence from the negligence of the ticular item, it does not seem, at least to railway company in permitting its gate or the majority of the court, could have been gap into its right of way to be down or get reasonably anticipated. It appears that the out of repair, or in failing to have fences mare which was killed, as well as two others and cattle guards on either side of the inof the horses, at the time the horses were tersecting public road, thereby inviting loose frightened at the approach of the east-bound stock to enter upon such right of way. The train, and caused to run eastward from the case of Railway Co. v. Dixon, cited in the intersection of the public road and the right majority opinion, is believed to be directly of way, and down the right of way north of in point, and to support the judgment of the the track, managed, either by going through trial court as to this item of damage. Apthe fences connecting the ends of the trestle pellee also cites Railway v. Benaist, 122 S. with the right of way fence or over the tres-W. 587, Railway Co. v. Harris, 3 Willson, tle, to escape the danger from the approach- Civ. Cas. Ct. App. § 224, Railway Co. v. ing train, and after the passing of the train Mitchell, 4 Willson, Civ. Cas. Ct. App. 261, turned back westward, and that the mare in 17 S. W. 1079, and Railway Co. v. Cooper, 75 question, in attempting to go back westward S. W. 329, all of which in more or less de

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