fact that Mr. Fox wrote to her on February | along this line, including that of Manton, the 13th, before their marriage, that he did not Ezells, and others. think either of them would want to live on the ranch, and that he would keep a house in town. On February 6th he wrote that his son would give up the cottage on Ulvalde street when wanted. There is other evidence that Mr. Fox had stated to divers people that he did not intend to live on the ranch, and the further fact that he took a guaranty of title, of date March 20th, in which he gave his residence as Bexar county, Tex., together with the further fact that on April 26, 1915, he brought his wife and her trunk to San Antonio and paid her room rent and occupied the room with her. So we have the positive statement of Mrs. Fox that San Antonio had been her home for six years next preceding the filing of the petition; that she had never abandoned it, and had been away only on trips for her health, pleasure, or business. She explained the affidavit made in, St. Louis by saying that she told the clerk before whom it was made that she was in St. Louis a part of the time, where she was staying with a sister. A great part of the year preceding the filing of the petition for divorce she was out of the state, in St. Louis, Chicago, and other places; but she says that these trips were made on the advice of physicians, for her health, and in looking after her business interests in Illinois, as well as partly for pleasure. It is even made to appear that she was out of Bexar county more than she was in the county during that year, if we consider the time they lived at the ranch, which is said to be in Medina county. [1] The question of whether parties have or have not resided in the county six months or been bona fide inhabitants of the state for twelve months before the petition is filed, while jurisdictional in its nature and necessary to be established before a divorce will be granted, is nevertheless a question of fact to be determined like any other issue in the case, and, the trial court having heard the evidence and determined that issue in favor of appellee, or in favor of the jurisdiction of the court, we would not be authorized to disturb that finding, where there is as much evidence as there is in this record that Mrs. Fox had lived here six years and had never abandoned her residence. [2] There is no doubt that a long-continued absence from the state or county, such as is shown in the Michael Case, 34 Tex. Civ. App. 630, 79 S. W. 76, where the plaintiff had been residing in Illinois for more than sixteen years prior to the filing of the suit, would not harmonize or be a substantial compliance with the requirement that the party must be an actual bona fide inhabitant of the state for the legal time prior to exhibiting the petition; or, as in the Haymmond Case, 74 Tex. 414, 12 S. W. 90, where the plaintiff left his family in Bell county in 1881 and went to Central America, where he stayed for many years, and then returned to Bell county and filed his suit, alleging that he had never abandoned that as his home. Of course, there is a distinction between a legal residence for the purpose of voting, etc., and a residence contemplated by the divorce statute. In the Haymmond Case, however, Judge Henry, speaking for the court, expressly stated: from the state or county of an inhabitant of the "We do not think that a temporary absence from the state or county of an inhabitant of the state during the six months next preceding the filing of his petition for divorce would affect his right to maintain it." And so it was held by Chief Justice Rainey, speaking for the Dallas court in the case of McLean v. Randell et al. (Civ. App.) 135 S. W. 1119, in dealing with a case where Mrs. McLean left Sherman and went to Beaumont, where she resided with a married daughter for several months, that the district court of Grayson county had jurisdiction of her cause of action for divorce. The construction of any law ought to be a reasonable and common-sense construction, and, if we were to construe article 4632 of the Revised Statutes as requiring that a party should spend the entire year in the state or the entire six months in the county before bringing a suit of that nature, we think it would be an unreasonable construction. Many people in good faith claim San Antonio, for instance, as their home; but their business calls them away to such an extent that they may spend more time away from this county than they do in it. This is notably true of some traveling salesmen, and yet they have no home anywhere else. Would it be just for such a person to be denied the jurisdiction of the courts of the county Supposing that appellant's ranch is in where his home is? Or, if a person falls into Medina county, that fact, which is relied upon bad health, and it becomes necessary to leave to break the continuity of residence in Bexar his home for the purpose of obtaining a cure, county, is itself a disputed issue; that is, should he thereby lose the protection the as to whether their residence there was mere- laws of his home give him? We do not bely temporary, or whether it was intended to lieve that absence in cases of this kind debe permanent. She testified that it was only stroys the bona fides of residence, nor do we a sojourn, temporary in its nature, and that think that the fact that Mrs. Fox's health neither of them ever intended to make that and business affairs called her away from their home, but that both of them recognized San Antonio a great deal would preclude her that their home was in San Antonio. There from maintaining her suit in Bexar county, been her home for six years, and that her absence was made necessary in the manner detailed. The Thirty-Seventh district court of Bexar county did have jurisdiction to entertain the bill for divorce. 2. EVIDENCE 185-BEST EVIDENCE-SEC- [Ed. Note.-For other cases, see Evidence, In suit to foreclose a vendor's lien, where the only objection to the original judgment of partition admitted in evidence to show that title to the purchase money notes was vested in ed title to land and had never been recorded, its plaintiff's wards was that such judgment affectadmission was proper. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1808-1812; Dec. Dig. 951.] 4. BILLS AND NOTES TION TO DECLARE DUE. 129-SUIT AS ELEC and for personal judgment against maker and Where, in suit to foreclose a vendor's lien indorser of the purchase-money notes, the notes contained stipulations that a failure to pay one when due should, at the election of the holder, mature both notes, one of the notes being long past due when suit was brought, the institution of suit was of itself sufficient to show an election by the holder to declare the second note due. [3] There is another reason, independent of the divorce phase of the case, which would give appellee the right to maintain this action in Bexar county, which is the allegation, supported by testimony, that money was furnished to the defendant for the purpose of being loaned upon real estate securities in the name and for the benefit of the plaintiff below, but that the defendant, instead of so loaning the money, converted it to his own use in this county, or placed it upon securities and retained the evidence thereof in his own name, refusing to deliver the same to Mrs. Fox. In other words, she charges that he practiced fraud upon her in Bexar county, Tex., and that some of the property is there situated. Her petition specifically sets these matters out, and asks that a resulting trust be established and fixed upon said properties. This would bring it squarely within the provisions of section 7 of the exceptions to article 1830 of Vernon's Sayles' Statutes. It is well established in Texas that a wife may maintain a suit against her husband for the protection of her separate property, and the petition in this case does not seek to deal with community property. Dority v. Dority, 96 Tex. 222, 71 S. W. 950, 60 L. R. A. 941. And if she has instituted such a suit for the protection of her separate property, and the alleged fraudulent acts of the defendant were committed in Bexar county, there is no reason why this suit should not there be maintained. O'Brien v. Hilburn, 9 Tex. 297; Ryan v. Ryan, 61 Tex. 473; Hall v. Hall, 52 Tex. 298, 36 Am. Rep. 725; Price v. Cole, 35 Tex. 471. In the case of Dority v. Dority, supra, we find a very learned discussion by Judge Williams. DUNKLIN, J. H. L. Stewart purchased a The judgment of the trial court is in all tract of land from J. H. Magness, and in things affirmed. STEWART v. THOMAS et al. (No. 8252.) (Court of Civil Appeals of Texas. Ft. Worth. Oct. 30, 1915.) 1. VENDOR AND PURCHASER DOR'S LIEN-FORECLOSURE AS TO LAND SOLD. 253 - VENUNCERTAINTY Where the description of land in a deed was defective as showing only three surveyor's calls, while the only description of the land in the purchase notes was by reference to the deed, in suit on the notes to recover personal judgment against the maker and indorser, and also for foreclosure of the vendor's lien, decree of foreclosure was erroneous, in the absence of proof that the omission in the description was by mutual mistake of the parties, or proof to show what property they really intended should be conveyed. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 637-640; Dec. Dig. 253.] Notes, Cent. Dig. §§ 283-292; Dec. Dig. Appeal from District Court, Comanche County; J. H. Arnold, Judge. Suit by Austin Thomas and others against H. L. Stewart and another. Judgment for plaintiffs, and the named defendant appeals. Reversed and remanded for another trial as to appellant. Kearby & Kearby, of Comanche, for appellant. Smith & Palmer, of Comanche, for appellees. part consideration therefor executed two promissory notes for $250 each, one payable November 1, 1913, and the other one year later. Thereafter the notes were sold to W. Thomas by Magness, who duly indorsed them. Later, in a certain suit for partition, styled Ada Thomas v. W. Thomas, the indorsee, the notes were set aside to Austin Thomas and other minors. The guardian of these minors instituted this suit to recover personal judgment against the maker and indorser, and also for a foreclosure of the vendor's lien upon the land for which they were executed, and from a judgment against both defendants for the relief prayed for H. L. Stewart has appealed. [1, 2] In plaintiff's petition it was alleged that, through clerical error in drafting the deed from Magness to Stewart, one of the calls in the description of the land was inadvertently omitted, such omission being a HOLMES v. TYNER. (No. 837.) (Court of Civil Appeals of Texas. Amarillo. Oct. 30, 1915.) 1. PRINCIPAL AND AGENT 23-AUTOMOBILE -SALE-REPUDIATED AGENT - SUFFICIENCY OF EVIDENCE. In an action by an automobile dealer for the value of a car purchased by defendant from one representing himself as agent for plaintiff, evidence held to support a finding of agency. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. 23.] 2. PRINCIPAL AND AGENT 14 IMPLIED mutual mistake of the parties; that the land | against appellant Stewart is reversed, and which they intended to be embraced in said the cause is remanded for another trial as deed was the tract correctly described in the to him; but the judgment against defendant petition. The judgment of foreclosure de- Magness, who has not appealed, is undisscribed the land according to the alleged cor- turbed. rected description. The deed executed by Magness to Stewart at the time the notes were executed was introduced in evidence and also the notes. The description of the land contained in the deed showed only three surveyor's calls and was wholly insufficient as a predicate for the foreclosure, while the only description embraced in the notes was by reference to the deed. No evidence was introduced to sustain the allegation that such omission in the description was by mutual mistake of the parties, or to show what property the parties to the deed really intended should be conveyed; and, in the absence of such proof, the decree of foreclosure was erroneous. The deed from Magness to Stewart had been recorded in the deed records of Comanche county, and this record was introduced in evidence instead of the original or a certified copy. Stewart objected to this proof on the ground that it was secondary evidence and plaintiff had failed to file with the papers a certified copy of the deed and give notice to Stewart of such filing. But, as shown in the court's explanation of the ruling, plaintiff had alleged that the original deed was in the possession of Stewart, and he had been duly notified to produce same upon the trial and had failed to do so. This showed a proper predicate for secondary evidence of the contents of the original deed. [3] Likewise, there was no error in admitting in evidence the original judgment of partition in the suit of Ada Thomas v. W. Thomas to show that title to the notes deThomas to show that title to the notes described in plaintiff's petition was vested in plaintiff's wards; the only objection offered to such proof being that said judgment affected title to land, and had never been recorded in the deed records of Comanche county. [4] The notes in suit each contained a stipulation that a failure to pay same or any installment of interest thereon when due should, at the election of the holder, mature both notes. One of the notes was long past due when the suit was instituted, and the institution of the suit to collect both was of itself sufficient to show an election by the holder to declare the second note due without further proof of that fact on the trial, as appellant insists should have been furnished. Since the judgment against Stewart is to be reversed, and as he has undoubtedly entered his appearance for another trial, other assignments of error questioning the sufficiency of service of citation upon Stewart will not be discussed. AGENCY. The relation of principal and agent does not arise from an express appointment merely, but also by implication from the words and conduct of the parties and the circumstances of the particular transaction. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 26-33; Dec. Dig. 14.] 3. HUSBAND AND WIFE 234-AGENCY OF WIFE-SCOPE OF AUTHORITY. In an action by an automobile dealer for the value of a car purchased by defendant from one representing himself as agent for plaintiff, evidence held to warrant a finding that plaintiff's wife was his agent with authority to employ salesmen. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. 234.] 4. PRINCIPAL AND AGENT 100 GENERAL MANAGER-SCOPE OF AUTHORITY-How DE TERMINED. A general agent for the management of a business has authority, coextensive in scope with the business intrusted to him, to do what is customary in such business; consideration being given to the character of the business and the usual manner in which it is conducted. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368–373; Dec. Dig. 100.] Where it appeared that to succeed as a going concern the nature of plaintiff's business required that salesmen travel about the country to demonstrate and sell cars, and the facts show an implied intention on plaintiff's part to authorize another to act as such agent, a sale by the latter was binding on plaintiff, since such agent had implied authority to sell. [Ed. Note.-For other cases, see Principal and Dec. Dig. 103.] Agent, Cent. Dig. §§ 278-293, 353-359, 367; 6. PRINCIPAL AND AGENT 103-AGENCY SALESMAN-AUTHORITY TO EMPLOY. Where plaintiff's wife was left in general charge of his automobile agency and she employed one to act as a demonstrator and salesman, such being customary in the business, or necessary to carry it on, a sale by the employé was binding on plaintiff, since, under such circumstances, the wife had implied authority to so employ. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; For the error indicated, the judgment Dec. Dig. 103.] 7. PRINCIPAL AND AGENT 145-EXPRESS OR | custom or otherwise, defendant was bound at his IMPLIED AUTHORITY THIRD PERSON peril to ascertain the agent's true authority. KNOWLEDGE OF AUTHORITY-IMMATERIALITY. [Ed. Note.-For other cases, see Principal and Where the act by which it is sought to bind Agent, Cent. Dig. §§ 567-569; Dec. Dig. the principal was within the authority actually 152.] conferred by the principal either expressly or by implication, one contracting with the agent need not show that he had knowledge of such authority and acted on the faith of it, since under either form of authority the act of the agent is that of the principal. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. 145.] 8. PRINCIPAL AND AGENT 137-UNAUTHORIZED ACT OF AGENT-ESTOPPEL-How CREATED. Liability on the principal's part for the unauthorized acts of his agent rests upon estoppel arising from words or conduct of the principal indicating the existence of authority in the agent to do the thing in question upon which there is a reliance in good faith. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 492-494; Dec. Dig. 137.] 9. PRINCIPAL AND AGENT 103 SALES AGENCY-BARTER EXCLUded. 14. PRINCIPAL AND AGENT 40 DEMON STRATOR-AUTHORITY TO SELL-REVOCATION recover the value of a car procured by defendant [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 63; Dec. Dig. 40.] Appeal from District Court, Childress County; J. A. Nabors, Judge. Action by M. A. Holmes against W. C. Tyner. From a judgment for defendant, plaintiff appeals. Reversed. Fires & Diggs, of Childress, for appellant. Jos. H. Aynesworth, of Childress, for appellee. HUFF, C. J. [1] The appellant, Holmes, In general, the power of the agent to sell instituted this suit for the conversion of an does not include the power to barter. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 307; Dec. Dig. 103.] automobile of the alleged value of $2,050, by appellee, Tyner, alleging the title in himself. The appellee, Tyner, answered, admitting the possession and alleged he purchased same through appellant's agent; that one Hawkins was the agent of appellant and brought the machine to Childress and exposed it to sale and claimed to be the agent of appellant, who it is alleged held Hawkins out as such and that appellee was informed by Hawkins and others that he was the agent of appellant; that Hawkins offered to sell the car and distributed literature of appellant and had possession of the car for the purpose of selling and demonstrating the car to prospective purchasers, and did show to appellant and others the car and held himself out as agent of appellant with power to sell, and solicited the sales of other cars of the same make and manufacture; that, after full notice of the acts of Hawkins, appellant paid divers and sundry costs and expense bills for him, and ratified and confirmed the acts of Hawkins, and directed Hawkins to proceed with the sale and to advertise and demonstrate the merits of the car and to seek and sell prospective purchasers for the car, and that thereby appellant was estopped to deny the right and authority of Hawkins to make the sale; that all of said acts of Hawkins were within the apparent scope of his authority, "and was within the ordinary and customary author13. PRINCIPAL AND AGENT 152 - UNAU- ing for sale cars when they are permitted to ity of one so using, demonstrating, and offer 10. PRINCIPAL AND AGENT 100 APPAR ENT AUTHORITY-DETERMINABLE-EFFECT. In determining the question of apparent authority, the character of the service, together with the usual practice of agents in such employment, may be looked to, and the agent is held to have implied authority to do all those acts which are naturally and ordinarily done and reasonably necessary in such cases. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368-373; Dec. Dig. 100.] 11. CUSTOMS AND USAGES 4 - SCOPE OF AGENT'S AUTHORITY-DURATION OF CUSTOM. A custom or usage to enlarge an agent's express authority must be shown by clear and satisfactory evidence, and must have existed long enough to make it widely and generally known, and such as will warrant the presumption that the principal had it in view at the time of appointing the agent. [Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. § 3; Dec. Dig. 4.] 12. PRINCIPAL AND AGENT 123-AUTOмOBILE DEMONSTRATOR - POWER TO BARTEREVIDENCE-SUFFICIENCY. In an action by an automobile dealer to recover the value of a car alleged to have been bartered by his sales agent in excess of authority, evidence held insufficient to establish authority in the agent to barter under his express authority or that implied by custom. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. 123.] THORIZED FECT. ACT-AUTOMOBILE-BARTER-EF handle, demonstrate, and use cars, and that Where defendant procured an automobile by plaintiff well knew such to be the usual, orbarter from one holding himself out as a sales dinary, and customary object of one out so agent for plaintiff, an automobile dealer, but demonstrating, and, if the plaintiff did not who had no authority to barter, defendant was liable as for a conversion, since, in the absence in fact give and authorize the said Hawkins of authority in the agent to barter implied by full power to make the sale in question that said plaintiff was negligent in permitting the facts in this case show that Hawkins at said Hawkins to make such use of the car some time thereafter went to Childress with and is now estopped to say that Hawkins the car in issue, and showed and tried to sell had no such authority"; that appellant, re- it, and represented that he had authority to lying upon the acts and conduct of Hawkins, do so. Mr. Knight, who it appears was the and the permission of Hawkins by appellant local agent for the Jackson car at Childress, to so act, which was known to appellant, or by virtue of a contract entered into with apby the exercise of ordinary care could have pellant at some time before the sale, went been known to him, induced appellee to pur- with Hawkins to visit the appellee. On this chase the car and pay full value to Haw-trip Hawkins showed the car to appellee and kins, to wit, $950 cash and one E. M. F. car, the manner of its working and at this time as the consideration therefor, and thereby gave appellee some literature with reference appellant was estopped to deny the agency. to the Jackson make of cars. T. F. Abbott, Appellant, by supplemental petition, de- who during this transaction was employed as nied specifically all the allegations in the an- an agent for appellant in the sale of these swer, and denied that appellee got possession cars, testified that at that time he resided in of the car from an agent of appellant, or Ft. Worth and in the absence of both appelthat he purchased the same from such agent, lant and his wife managed the office at Ft. but that in acquiring possession thereof he Worth. This witness says, about five days bedid so by barter and trade with Hawkins fore Hawkins left with the car on April 20th, and never paid the value of the car in cash he (witness) returned from a trip and found to any person. It is admitted therein that Hawkins in the office and was introduced to Hawkins was in possession of the car, but him by Mrs. Holmes. This witness states was so unlawfully, etc. The fact of Haw- that when he left to go to Clarendon (from the kins' possession and the manner by which he trip thereto, from which he had just reobtained and held it was specifically alleged, turned when he first met Hawkins) appellant showing a wrongful possession. The facts was not at the office and was out somewhere, hereinafter set out will indicate the specif- and when he returned appellant was still out ic facts relied on as showing an unlawful of the office, but during the time had been possession as relied on and set out in the back and had gone away. At the time the supplemental petition. witness got back Mrs. Holmes was in charge of the office. The witness testified Mrs. Holmes introduced him to Hawkins and he thinks Mrs. Holmes then said, "or something to the effect she had a salesman there. I do not remember her exact words, but that is nearly as I can remember them. We did not talk but little." Hawkins appears to be the person there referred to. At the direction of Mrs. Holmes, Hawkins took the witness home from the office in a car. After this first conversation with Mrs. Holmes with reference to Hawkins, witness asked Mrs. Holmes if she knew anything about him. A verdict was rendered for the appellee, upon which judgment was entered. The appellant requested the court to instruct a verdict for him, and also, in his motion for new trial, requested that the verdict of the jury be set aside for the reason that there was no evidence supporting the verdict, because: (a) It is admitted in the pleadings that appellant was the owner of the car, and the evidence did not warrant the jury to find Hawkins was his agent to sell and use the car in Childress county; (b) if he was the agent to sell, he was not authorized to accept in part payment trade as alleged by appellee; (c) if prior to the sale he was the agent, such agency was revoked before the trade to appellee, and the agency was not at any time known to appellee; (d) that appellee by his own evidence shows that he dealt with Hawkins as the owner and not as an agent. "She said she had 'phoned to the manager of the Carter car, Mr. Mathews, and that he said he his hands on. Mathews claimed the fellow had was a good man but would steal anything he got sold one of the tires off of a car and had put on an old one in its place, and I said, 'No business man in town would keep a man on that recommendation,' and I think she replied she would keep him and try him, or that was the meaning of it." In stating our conclusions of the facts we The witness also testified the only car othshall state them from appellee's standpoint. er than the one in issue, that he knew of Appellant, Holmes, at the time of the transac- Hawkins taking out, was one on the evening tion, had the state agency for the Jackson he (witness) returned. He took out a gray cars, situated in Ft. Worth. The car in ques- Roadster and took some one in it to show it. tion was one of that make. The cars, when The witness testified that Holmes himself delivered to appellant, were paid for by him turned the car over to Hawkins, who left and he employed agents thereafter to resell with it for some point up the Denver, and them. About the 20th day of April, 1913, witness' understanding was that he was appellant turned the car over to J. A. Haw- to work some territory up there. He testikins, as he testifies, to go up the Denver road fied that he thinks Hawkins first stopped at as far as Alvord or Decator, and to bring Alvord, and that he knew he stopped at to Ft. Worth some prospective purchasers, Wichita Falls from the fact that the office which Hawkins claimed to have, and to show got hotel bills from there. The bill was |