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during the December term, nor was notice of peal so as to give this court jurisdiction, and appeal given during said term, as provided therefore appellees' motion to dismiss is in article 2084, Vernon's Sayles' Texas Civil granted. Statutes, nor was an appeal bond filed with- Appeal dismissed. in the 20 days after the expiration of the term, as provided by law, in order to give this court jurisdiction.
ARANSAS HARBOR TERMINAL RY. v. Appellees cite in support of their contention the case of Wells Fargo & Co. Express (Court of Civil Appeals of Texas.
SIMS. (No. 5507.)*
San Anv. Mitchell, which case is reported on the
tonio. Oct. 20, 1915. Rehearing Deoriginal hearing on motion to dismiss appeal
nied Nov. 17, 1915.) in 165 S. W. 139. On this hearing the Court 1. CARRIERS mm 347 — CARRIAGE OF PASSENof Civil Appeals for the Seventh District GERS — ALIGHTING — CONTRIBUTORY NEGLIoverruled the motion to dismiss, but it ap
GENCE. pears from the motion of appellees and the ing glasses, and weighing 246 pounds, in at
Where a passenger, with weak eyes, wearwritten agreements of both appellees and ap- tempting to alight in the daytime from a railpellant that, on motion for rehearing, the road train by taking hold of the handrail with Amarillo court granted appellees' motion for distance to the ground being about three feet
both hands, stepped off and was injured, the rehearing, and dismissed the appeal. While and there being no footstool, such action did neither appellees nor appellant cites us to not constitute contributory negligence as a matthe report containing the opinion of the ter of law. court on this last-mentioned action, yet there cent. Dig. $$ 1346, 1350-1386, 1388-1397, 1402;
[Ed. Note. For other cases, see Carriers, appears attached to appellees' argument, in Dec. Dig. Cum 347.] support of their motion to dismiss the appeal 2. TRIAL O352-ACTION FOR INJURIES-SUBin this case, what purports to be a copy of MISSION OF ISSUES-FORM OF INTERROGATOthe opinion of the Amarillo court on mo- RIES. tion for rehearing, which we presume to be injuries to a passenger in stepping from a train,
In an action against a railroad company for correct. Appellant concedes that the Wells the submission of the issue whether defendant Fargo Case is authority in support of ap- was negligent, as negligence of a carrier of paspellees' motion, but urges that the majority sengers was defined in an instruction given, was of the court for the Seventh district, Chief the question as failing to limit the jury to the
not reversible error on account of the form of Justice Huff dissenting, are in error in hold-consideration of the facts raised by the pleading that the case of Hughes V. Doyle, 91 | ings; the court having informed the jury that Tex. 421, 44 S. W. 65, and other cases cited the case would be submitted on the issues raised
thereby. on the motion for rehearing, support the
[Ed. Note. For other cases, see Trial, Cent. conclusions reached. But, irrespective of the Dig. 88 840-842, 844, 845; Dec. Dig. E352.] question discussed and the conclusions reached by the Amarillo court in the case cited, as
Appeal from District Court, San Patricio to the authority of the commissioners' court County; W. W. Walling, Special Judge. to prescribe the number of terms of the
Action by Exer Sims against the Aransas
Judgment for county court which may be held in any year Harbor Terminal Railway. and the time when such terms shall begin plaintiff, and defendant appeals. Affirmed. and end, we are confronted with the state- Denman, Franklin & McGown, of San Anment in the caption of the transcript that tonio, for appellant. Jas. G. Cook and M. C. the term of the county court of Cooke coun- Nelson, both of Sinton, for appellee. ty in which this judgment was rendered was "a term of the county court begun and holden MOURSUND, J. This is an appeal from at Gainesville, Tex., and for the county of a judgment for $1,000, recovered by Miss Cooke, before Hon. R. V. Bell, judge of said Exer Sims against the Aransas Harbor Tercourt, on the 7th day of December, A. D. minal Company on account of injuries sus1914, and ending on the 31st day of Decem- tained by her in alighting from a train, ber, A. D. 1914.” Thus it will be seen that, which injuries she alleged were caused by irrespective of the question as to whether or the negligence of said terminal company in not the December term of the county court failing to provide and maintain a safe way might have been legally caused to continue of departing from its cars, in failing to proover and beyond January 4, 1915, the only vide reasonably safe appliances to enable evidence before us is that said December her to alight from the car, and in failing to term of the court ended December 31, 1914, provide assistance to her in alighting from and that no notice of appeal was given by the car. Defendant denied the allegations appellant prior to said last day of the term, of the petition, and pleaded that plaintiff was and no appeal bond appears in the record as guilty of contributory negligence which proxhaving been filed within 20 days after the imately caused her injuries. expiration of the December term, or at any  Appellant contends that the undisputed other time.
evidence shows that appellee was guilty of Under such a state of the record, we hold contributory negligence which directly and that the appellant has not perfected his approximately caused her injuries. Appellee
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was a passenger on appellant's train, which of the amendment to article 1971, Revised arrived at Aransas Pass in the daytime. All Statutes 1911 (Acts 33d Leg. c. 59, § 3 [Verof the passengers got off, appellee being the non's Sayles' Ann. Civ. St. 1914, art. 1971]), last one to leave the car. In alighting, she requiring all objections to the charge to be took hold of the rod with both hands and made before it is given. See Dallas Con. stepped off. The distance was about three Elec. Ry. Co. v. Motwiller, 101 Tex. 521, 109 feet. She weighed 246 pounds. Her eyes S. W. 918; S. A. & A. P. Ry. v. Long, 19 Tex. were weak, and she wore glasses. She did Civ. App. 649, 48 S. W. 599. The reasons not realize that the distance from the step to for not reversing a case on account of omisthe ground was so great. She had on three- sions were much more cogent when the court button Oxford shoes, and when she placed was not apprised of such omissions until her foot on the ground and rested her weight after the verdict was returned, but as the on it, her ankle turned and was badly sprain- amendment made no change in the rules to ed. She was reasonably active, considering be applied with reference to omissions, it her weight, and had not theretofore fallen seems it is necessary, in order to be in a on account of her ankle giving way. Appel- position to complain of an omission, that lant failed to furnish any stool or to assist the party should present and request the givthe passengers in any way in alighting from ing of a charge covering the matter omitthe car. This evidence does not conclusivé- ted. Selden Brick Construction Co. v. Kelly show that plaintiff acted otherwise than ley, 168 S. W. 985. But in this case, even if an ordinarily prudent person would have act that rule should not be applied, no reversal ed under similar circumstances, and it can- should take place on account of the form not be held that she was guilty of contribu- of the question. The court, in its charge, tory negligence as a matter of law. M. P. informed the jury that the case would be Ry. v. Watson, 72 Tex. 631, 10 S. W. 731; G., submitted upon special issues raised “by the C. & S. F. Ry. v. Vinson, 24 S. W. 956; T. pleadings and the evidence," and the form & P. Ry. v. McLane, 32 S. W. 776; Weather- of the question as submitted was not calcuford, M. W. & N. W. Ry. v. White, 55 Tex. lated to cause the jury to base its verdict upCiv. App. 32, 118 S. W. 799.
on matters proved but not alleged. Besides  The court, after defining the term, the statement of facts does not disclose any "negligence,” when applied to carriers of pas- evidence of acts of omission or commission sengers, submitted the issue as follows:
on the part of defendant causing injury to “Was the defendant, Aransas Harbor Termi- plaintiff other than those pleaded, so defendnal Railway, negligent, as negligence of a car- ant could not have been harmed by the manrier of passengers is above defined ?"
ner in which the issue was submitted. DalDefendant, at the proper time, filed the fol- las Con. Elec. St. Ry. Co. v. Mọtwiller, sulowing objections to such question:
Appellant, by its third assignment of er-
but, having been fully discussed in disposThese objections were overruled, and er- ing of the preceding assignment, it is unnecror is assigned to the action of the court in essary to say anything further concerning submitting such issue. The charge should the same. be so drawn as to direct the jury to the By the last assignment appellant attacks consideration of the specific acts of negli- the sufficiency of the evidence to sustain the gence alleged in the petition. Appellee con- finding that appellee was not guilty of contends that the question submitted was cor- tributory negligence. We have already held rect as far as it went, and was not an affirm- that the evidence did not show contributory ative misdirection of the jury, but an omis- negligence as a matter of law, and this assion of which advantage could not be taken signment, as we construe it, raises the same without requesting the submission of an issue issue; but, if intended as a contention that which would supply the omission, or request the great preponderance of the evidence ing an instruction limiting the jury, in de- shows contributory negligence, and that the ciding the issue, to the acts alleged to have judgment is therefore manifestly unjust, the caused the injury. This contention is sus- same must be overruled, for we consider the tained by cases decided prior to the passage evidence to be of such character as to war
rant the jury in finding that appellee was not held to make defendant's agreement to pay guilty of contributory negligence.
therefor a question for the jury. The judgment is affirmed.
[Ed. Note. For other cases, see Sales, Cent. Dig. $$ 145–151; Dec. Dig. 53.] 7. TRIAL 251-INSTRUCTIONS-PLEADING.
In such action, where the plaintiff did not
plead any estoppel or waiver as against the SCRUGGS v. E. L. WOODLEY LUMBER CO. defendant, an instruction that if defendant (No. 828.)
waived the size of the house, or knew the size
of the house actually built, plaintiff could re(Court of Civil Appeals of Texas. Amarillo.
cover, and that defendant would be estopped to Oct. 30, 1915.)
claim that the lumber was furnished for a house 1. APPEAL AND ERROR Cw194–GROUNDS OF ment, should not have been given.
of that size for which there had been no agreeREVIEW-EXCEPTION. The fact that a special exception in plain
[Ed. Note.-For other cases, see Trial, Cent. tiff's supplemental petition was not in due order Dig. $$ 587–595; Dec. Dig. em 251.] of pleading was no cause for reversal, where no exception to the supplemental petition was
Appeal from Wheeler County Court; M. taken in the court below, on the ground that it M. Miller, Judge. was not in due order of pleading,
Action by the E. L. Woodley Lumber Com[Ed. Note. For other cases, see Appeal and pany against W. C. Scruggs. Judgment for Error, Cent. Dig. 88 1241-1246; Dec. Dig. En plaintiff, and defendant appeals. . Om
and remanded. 2. PAYMENT O9- INCUMBERED PROPERTYLEGAL TENDER.
H. B. Hill, of Shamrock, and C. E. GustavA creditor is not required to accept in- us and M. J. R. Jackson, both of Amarillo, for cumbered property in settlement of his account appellant. M. Reynolds and C. E. McVey, and to assume the incumbrance, but need ac- both of Shamrock, for appellee. cept nothing but a legal tender.
[Ed. Note. For other cases, see Payment, Cent. Dig. $$ 38, 40, 41, 49, 53; Dec. Dig. Omi HUFF, C. J. This was a suit to recover 9.]
the balance due appellee for the sum of $391.3. EVIDENCE Om354-BOOKS OF ACCOUNT, 43, on a bill of lumber furnished to build a
FIRST PERMANENT ENTRY-ORIGINAL EN- residence upon land, the legal title to which TRY.
In an action for the balance due on a bill was in appellant, but who had contracted of lumber furnished to build a residence on with one Smith to deed the land to him upon land, the plaintiff's daybook or journal, kept as the payment of certain sums of money. It is a book of account in the regular course of busi: alleged, in effect, that appellant made the ness, and the first book in which the items of sale entered by plaintiff's yardmen on slips torn order for the lumber and, upon a sufficient from a pad were first permanently entered, aft- consideration, agreed to pay the bill upon er the preliminary proof, was admissible as a the contract so entered into with appellant. book of original entry.
Appellee delivered the lumber to Smith, who [Ed. Note.-For other cases, see Evidence, Cent. Dig. $$ 1432-1483; Dec. Dig. 354.]
erected the house upon the land, to which 4. EVIDENCE 354-BOOKS OF ACCOUNT-verdict and judgment in favor of appellee
appellant had the legal title. There was a COLLATERAL FACTS.
Under the rule as to the admission of books for the amount sued for. of original entry containing items of account, The first assignment will be overruled. books not containing charges made in the regu- The facts are sufficient to raise the question lar course of business are inadmissible to prove the collateral matters shown therein, which of an agreement; that is, that the minds of matters must be shown by independent testi- the parties met. mony.
[1, 2] The second assignment will be over[Ed. Note. For other cases, see Evidence, ruled. The fact that special exception No. Cent. Dig. 88 1432-1483; Dec. Dig. 354.]
6 in appellee's supplemental petition was not 5. EVIDENCE Om354-BOOKS OF ACCOUNT- in due order of pleading is no cause for re. ALTERATION.
In an action for the balance due on a bill versal on the ground that the court sustained of lumber furnished to build a residence upon the exception to paragraph 6 of appellant's land, legal title to which was in defendant, who answer. This was a formal matter, and an had contracted to convey it to one S. on pay exception should have been presented in the ment of a certain sum, an account book, showing charges against J.'F. or J. F. S.. was not court below to the exception contained in the inadmissible because plaintiff's manager wrote supplemental petition on the ground that after S.'s name the word "residence," where it it was not in due order of pleading. The exappeared that S. was procuring material about the same time, and where there was no indica- ception will not be entertained in this court, tion of fraudulent intent.
where it is made for the first time. We [Ed. Note. For other cases, see Evidence, think the court properly sustained the excepCent. Dig. 88 1432-1483; Dec. Dig. 354.] tion. We know of no rule of law or equity 6. SALES Cw53-ACTION FOR PRICE - QUES- that will require a creditor to accept in set
TION FOR JURY.
tlement of his account property incumbered In an action for the balance due on a bill by indebtedness and to assume such indebtof lumber furnished to build a residence upon edness. The appellee was not required in land, the legal title to which was in defendant, but which he had contracted to convey to one law to accept anything but a legal tender. S. on payment of a certain amount, evidence  Under the third assignment it is urged
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that the shopbooks of appellee should not In the case cited Judge Ramsey, who renderhave been admitted in evidence. The billed the opinion of the court, cited the Johntaken by appellant urges that this book was son Case, evidencing thereby the shop rule not the book of original entry. It appears would not be extended to registers of railto have been the daybook or journal. The roads as to the movement of its trains. In testimony to which appellant refers as show the case of Guthrie v. Mann, 35 S. W. 710, ing the book not to be one of original entry cited by appellant, the court simply held the is to the effect that appellee was a lumber books were not competent to prove a receipt, company and dealer in lumber. In making but the receipt itself should be proven. Pohl sales the yardmen noted on a tablet or pad v. Bradford, 25 S. W. 984, held, as it is unithe sales made, to whom made, and the ar- versally held, under the shopbook rule, that ticles sold. This pad or slip was turned in the ledger is not admissible where it is shown to the bookkeeper, who entered the items to have been made up from the daybook or from this slip of paper which had been torn journal. In Baldridge v. Penland, 68 Tex. out of a pad by the yardman making the sale 411, 4 S. W. 565, it is held the books of origor delivering the article. Both the manager inal entry should be produced or accounted and bookkeeper testified as to the method, for, and that items on the account which do and the bookkeeper who made the entries not appear to be such as were usually dealt testified as to the correctness of the books, in by the business could not be proven by the and that he made the entires in the daybooks books. or journal. This book is shown by the testi-  Books are not admissible under this mony to be the first book of permanent entry. rule, unless they are used in the regular course The objection here urged is that:
of business and kept by the parties as books “The tickets were the matters of original en- of account. Hence books for some purpose try and were the basis of the charges in such other than that of making charges in the book, and that the tickets were the first and course of business do not fall under the rule original entry.”
It will be observed that there was no ex- or items entered in account books which are ception that the book kept, and the entries not such as are handled in the regular course made were not entered in due course of busi- of the business, and therefore cannot be provness, and not correctly kept or proven up by ed by the books. It is the general holding, the proper parties making them; the only under this rule, that collateral facts canobjection being that the book was not the not be shown by the books. If other facts, book of original entry. We shall, for the
We shall, for the aside from the sale and delivery of the arpurpose of this opinion, presume all the nec- ticles or the performance of the work and essary preliminary proof was made, and con- labor are necessary to make out the case,
these facts cannot be established by the sider the sole question as to whether this was the book of original entry within the mean
books or affidavit of the party, but must be ing of the rule. In Railway Co. v. Johnson,
made out by independent testimony. 7 S. W. 838, the Supreme Court, speaking cases cited by appellant evidently had in through Judge Gaines, said:
view these general principles in deciding the "It seems, however, pretty well established cases then in hand. Mr. Jones on Evidence, that the first permanent records of the transac- vol. 3, § 569, discusses the question now intions by the creditor are to be deemed original volved, as follows: entries, if made within a short time after the transactions themselves, although the items may tries in the book of account be made in the reg,
"In addition to the requirement that the enhave been previously entered, as a temporary ular course of business, it is equally essential assistance to the memory, upon some slate, book, paper, or other substance not intended to that they constitute the party's original entries be preserved. In an old case this court admit- or the first permanent records of the transacted the rule generally recognized in the courts tion in question, in order to be admissible in of this country, but strongly animadverted upon
evidence. Thus, if the entries are made in a it as a dangerous innovation of the principles of daybook or journal and transferred thence to a the common law, and refused to extend it, in ledger, the entries in the ledger are not comcases of merchant's account, beyond such arti- petent, but it is no objection to the book, if
a of his business. Cole v. Dial, 8 Tex. 347. It is The former strict idea of what constituted origcles as are usually sold by a merchant in course otherwise regular, that the entries which they
. * usually confined to accounts for labor perform-inal entries has been modified to fit the necessied, or to goods sold by regular dealers in mer- ties of new business conditions. Inasmuch as chandise.”
under the modern methods of extensive business In the case then under consideration, the houses the information relative to the transaccourt refused to extend the rule to transac- tions constituting the accounts must pass tions between shippers of grain and the rail through various hands before being permanently
recorded, some system of temporary memoranda road. The appellant cites the case of Cathey preparatory to the permanent records is necv. Railway Co., 104 Tex. 39, 133 S. W. 417, 33essary to insure convenience as well as acL. R. A. (N. S.) 103. In that case the regis- curacy. It would be impracticable to preserve, ter of the railway company showed the time constituting such original memoranda, and im
for any length of time, the tags, slips, or tokens trains pass the yards. This register was possible, in view of the changing of employés, made up from slips or cards prepared and to obtain the testimony of the persons who furnished the keeper of the register by the the transaction. Hence, following the rule of
made the temporary memoranda or conducted employés operating the trains. It was held necessity, the courts do not regard such tempothe permanent records as such original entries given. We doubt the sufficiency of the teswhen properly verified by a suppletory oath.” timony to sustain the question of waiver or
See, also, Elliott on Evidence, vol. 1, $$ estoppel; however, we will not, at this time, 459, 460; Rogers v. O'Barr et al., 81 S. W. hold the court was in error because of the 750; Barclay v. Deyerle, 53 Tex. Civ. App. insufficiency of the testimony. It occurs to 236, 116 S. W., on page 125. The books in us the only issue in the case was whether this case clearly fall under the shopbook rule, there was entered into the agreement aland we think it is sufficient to show that the leged. If there was, appellant was liable; daybook or journal is the first permanent if not, he was not. Under the conflict and book of entry, and that, if the other neces- the peculiar state of facts in this case, this sary requirements are shown, is admissible, charge was calculated to divert the attention and that the slips of paper, used as memo- of the jury from the issue presented by the randa, are not, under this rule, the original pleadings. Assignment No. 6 will be susentry, such as will require their production. tained, which will require a reversal of this This assignment will be overruled.
case.  The fourth assignment urges the trial Reversed and remanded. court should have excluded the books because it was shown that they had been altered. The account appears to be in the name of J. F. or J. Frank Smith, Residence. The mana- KING et ux, V. COLLINS. (No. 472.) ger says after the bookkeeper made the en
(Court of Civil Appeals of Texas. El Paso. tries that he, the manager, wrote after Oct. 28, 1915. Rehearing Denied Nov. Smith's name, "residence." We find nothing
18, 1915.) in the fact that the word "residence" was 1. CONTRACTS Om 332-ACTIONS-PETITIONwritten in the account to indicate a fraudu
SUFFICIENCY TO SUPPORT VERDICT. lent appearance. It appears Smith was pro- with defendant to install the plumbing and heat
A petition alleged that plaintiff contracted curing material about the same time for a ing in a building, that the contract provided for church that he was procuring material for payment upon architects' estimates as the work the house. We think the explanation was progressed, that payment of an estimate was resufficient, and if it satisfied the trial court tract, but that he afterwards finished the work
, as to the appearance of the books, we think by special agreement with defendant, that there would be no error shown requiring a there was due and owing him for work perreversal of the case. Jones on Evidence, formed and material furnished $1,200, after de
ducting $1,300 theretofore paid, and after devol. 3, § 576.
ducting from the contract price of $2,700, the The fifth, seventh, and eighth assignments reasonable cost and expense of installing the are overruled for the reasons given under heating and plumbing, which sum of $1,200 was the first assignment.
the fair and reasonable value over and above
the amount paid for the work and material of  The evidence presents a conflict as to which defendant had availed himself, and which whether appellant and appellee reached an he had used, kept, and retained. Held that, in agreement. If appellee's witnesses are to be the absence of an exception, the petition was believed, appellant agreed to pay and order- sufficient to authorize a charge and a verdict
either upon quantum meruit or for the balance ed the lumber to build the house. He did of the contract price, as the amount due could so for his own interest and financial benefit, be definitely ascertained in view of the allegaand the inference may be drawn therefrom tion that the work was to be paid for upon esti
mates as the work progressed. that he left the size the house should be to
[Ed. Note. For other cases, _see Contracts, the determination of Smith. Appellant own- Cent. Dig. && 1615–1639; Dec. Dig. Om332.] ed the land on which the house was being 2. APPEAL AND ERROR 1066 – HARMLESS erected, that is, he had the legal title there- ERROR-ERRORS NOT AFFECTING RESULT. to and had contracted with Smith to deed A judgment would not be reversed on the him the property if Smith paid for it, and ground that the petition stated a cause of action the testimony indicates Smith had practical- on a quantum meruit, and the charge authoriz
ed a recovery of the balance due under a conly defaulted before the lumber was deliver-tract, where there was no question as to the reaed. The circumstances, we think, in this sonable value of the work done and material case, are sufficient to raise the issue present- furnished, and there could therefore have been
no other verdict rendered. ed by the trial court for the jury's finding.
[Ed. Note.-For other cases, see Appeal and
. . ,  We believe the court, however, was in Error, Cent. Dig. § 4220; Dec. Dig. Om 1066.] error in giving appellee's specially requested 3. MECHANICS' LIENS Cw93—PERSONS ENTIcharge No. 3, which substantially instructed
TLED-STATUTORY PROVISIONS. the jury that if appellant waived the size Under Rev. St. 1911, art. 5621, providing of the house, or, knowing it, that is, the size that any person or firm, etc., who may labor or of the house actually built, that appellee furnish material, etc., to erect any house or im
provement, shall have a lien on such house, could recover, or that appellant would be building, etc., and all its properties, and on the estopped to claim the lumber was furnished lots of land necessarily connected therewith, for a house of that size, for which there had where a contract for the installation of the heatbeen no agreement. There was no estoppel payments from time to time as the work proThere was no estoppeling
and plumbing in a building provided for or waiver pleaded by appellee. Under the gressed upon the architects' estimates, and the pleadings this charge should not have been owner refused to make a payment on an
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