bly had a third conversation with him, and it was one of the ones over the phone. In the phone conversation, I recognized Mr. Baker liams had called my attention to the length of as the party to whom I was taiking. Mr. Wiltime the claim had been out, and that it had not been paid, and I remember the circumand asked why it had not been paid, and he stances so clearly that I called Mr. Baker up expressed surprise that it had not been paid, and went on and stated that he had put the claim up in the proper way, and would take it up again with the Dallas office and see that we did get paid, and that he thought the claim was a just one, and he expressed surprise that it had not been paid, and first he stated that it had not, he said he would take it up right it had been paid, and when I showed him that away. I cannot remember the second conversation, but this was the first time I talked to him, and the second time, I don't know whether I talked over the phone, but I rather think I did, and he came over there to see Mr. Williams

[1] We do not think the agreement by Baker, acting for defendant company, to pay for the damaged potatoes, can reasonably be construed as being in the nature of a contract discriminating in favor of the plaintiff with reference to freight rates or charges. It was an acknowledgment of liability, the extent of which was to be determined by an examination of the potatoes, and sorting the damaged ones from the uninjured. The fact that this proof of the amount of the damages was to be made by plaintiff's agents and employés would not alter the character of said agreement or transaction. The separation of the good from the bad, and the ascertainment of the extent of the loss, was to be made "on the account of" loss, was to be made "on the account of" defendant company, as testified to by Baker himself, and through the medium of his own-our desks are right near each other, and he selection. There is no pleading or proof to support the conclusion that the loss really suffered by plaintiff was not in the amount of the claim, or that the confidence Baker showed in the fairness and carefulness of plaintiff's employés was misplaced. The plaintiff pleaded an agreement of compromise and settlement, and we think the evidence amply sustains such plea. We do not think the arguments urged to the effect, or the cited authorities holding, that where a contract between shipper and carrier contains a provision that grants to the shipper a special privilege or advantage, are in point. Therefore, we overrule the first assignment, and likewise the second, which complains of the failure of the trial court to enter judgment for defendant company.

[2] We do not think the court erred in refusing to admit the letter written by Baker, for Rowe, March 7, 1912, to the Dallas office, with reference to this claim, and we hold that the objection of plaintiff to its introduction that it was res inter alios acta, irrelevant, and immaterial, was properly sustained. Moreover, if said letter could be held under any construction to be admissible, we cannot see how its exclusion could have injured appellant. The only reason assigned in support of its admissibility is that it tends to show that Baker had not recommended therein the payment of the claim and it was therefore in rebuttal of the testimony of Wardlaw, plaintiff's credit man, wherein he stated:

"I talked with Mr. Baker about this particular claim after some little time had elapsed, and he stated to me that he had made the agreement to pay this amount of money to protect us on this claim."

And later, having been recalled:

"I had a conversation with Mr. Baker subsequent to the occasion of Want & Co. receiving this shipment regarding the damage, claimed on the shipment, which conversation was over the phone. I had a second conversation with Mr. Baker, but I am not positive about it; I think I spoke to him about this claim, in connection with Mr. Williams, when he was in our office one day talking about it. I possi

was in the office talking about this claim, probably over there investigating some other claim at the time. He did not say anything to me with reference to his having agreed that they would protect Want & Co. on the claim. In substance, he stated that he had put the claim up in the proper way, and that he expected it to be paid, and was surprised that it had not been paid."

There is nothing in this letter which would render it even improbable that Baker did make the statements attributed to him by Wardlaw. The third assignment is over

ruled.

[3] We think the evidence justified the submission of issue No. 4, which reads as follows:

"Had the defendant railway company held out its agent, Baker, to the shippers and consignees as having authority to enter into such agreement as alleged by plaintiff ?"

F. A. Jackson testified:

Baker, whenever anything was wrong there and "From my experience up to that time, Mr. I showed it to him, and he said, 'You go ahead and find out the damage and we will pay for it,' and in a few days later he would send a check to cover it."

Mr. Wardlaw, upon this point, testified in part as follows:

of the railroad companies who make any nota"It is customary with Mr. Baker and with any tions of shortage on examining the shipment, we go ahead and file the claim, and nothing more is heard from it; the claim is paid in a short Mr. Baker about those claims on the occasion while. All the agreements heretofore made with when Baker would come over and make notations on the expense bills were carried out; every one except this one."

Mr. Baker testified:

"I told Mr. Jackson to go ahead and handle the potatoes for the account of the M. K. & T. Ry. Co. of Texas as a matter of adjustment between the railroad and the consignees. That was my customary way of dealing with matters like that when I was called to inspect a shipment. By that I meant that Jackson, on behalf of his company, should handle these potatoes just like the railroad company would handle them if Want & Co. had not received them. I had done that previously in several shipments with Want & Co. which they had called me over to inspect. * It was my customary way of handling business in that position."

C. D. Rowe testified:

"I knew prior to this time that he (Baker) had been calling at A. E. Want & Co.'s establishment to inspect damaged shipments, and had requested them to handle the shipments for the railroad company. * When they are handling a shipment for our account, I would not expect that they would lose by the transaction-not be out any money."

Therefore, the fourth assignment is overruled, and also the fifth, which objects to the submission of issue No. 3, to wit:

"Had the witness Baker, prior to the transaction involved in this cause, made similar agreements to the one alleged by plaintiff to have been made, and which agreements were carried out by the defendant railway company?" The sixth and last assignment directed to the action of the trial court in overruling defendant's motion to set aside the findings of the jury is overruled. Judgment affirmed.

DANIEL v. LANE. (No. 8228.)
(Court of Civil Appeals of Texas. Ft. Worth.
June 19, 1915. Rehearing Dismissed by
Agreement, Oct. 16, 1915.)

1. PARTNERSHIP 296-DISSOLUTION-PEND-
ING MATTERS-SUFFICIENCY OF EVIDENCE.

decided in suspense, not terminated, were sustained by the pleading.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 587-595, 828-833; Dec. Dig. 251, 350.] 4. PARTNERSHIP 296-ACTIONS-EVIDENCE. That a former member of a real estate partnership, claiming to be entitled to a share of a commission on a deal pending at the time of the dissolution, participated in a fee earned by another firm prior to March 1, 1914, did not conclusively show that the jury's finding that he became a member of such firm on March 1, 1914, was not sustained by the evidence.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 662, 663, 666-678; Dec. Dig. 296.]

5. TRIAL 350-SPECIAL ISSUES-ISSUES TO BE SUBMITTED.

Special issues which were not put in controversy by the evidence, or were included in and controlled by issues which were submitted, were properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. 350.]

Error from District Court, Tarrant County: Marvin H. Brown, Judge.

Action by R. L. Lane against J. B. Daniel. Judgment for plaintiff, and defendant brings error. Affirmed.

J. C. Terrell and Thompson & Barwise, all of Ft. Worth, for plaintiff in error. Roy Rowland & Young, and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for defendant in error.

In an action by a former member of a real estate partnership for a share in the commission on a sale completed after the dissolution of the partnership, evidence held to support the jury's findings that the partnership contract was not terminated until March 1, 1914; that there was an agreement at the time of the disBUCK, J. This suit was filed by R. L. solution that plaintiff should receive one-third Lane against J. B. Daniel. Plaintiff alleged of the commission on pending deals; that the that he and defendant were partners in the deal in question was pending at the time of the dissolution; and that plaintiff did not become real estate business in the city of Ft. Worth. a member of another firm until March 1, 1914. Tarrant county, Tex., under the firm name of [Ed. Note. For other cases, see Partnership, J. B. Daniel Realty Company; that on or Cent. Dig. §§ 662, 663, 666-678; Dec. Dig. about the 1st day of January, 1912, the J. B. 296.]

2. PARTNERSHIP

296-DISSOLUTION - Ac

TIONS INSTRUCTIONS-PENDING." In such action the court did not err in connection with the issue as to whether the deal in question was pending at the time of the dissolution in defining the word "pending" as meaning remaining undecided, in suspense, not terminated.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 662, 663, 666-678; Dec. Dig. 296.

For other definitions, see Words and Phrases, First and Second Series, Pending.]

3. TRIAL 251, 350-DISSOLUTION OF PARTNERSHIP-INSTRUCTIONS CONFORMITY TO

Daniel Realty Company listed a certain tract of land for sale, known as the Mitchell tract. consisting of 808 acres and lying some miles north of Ft. Worth; that on or about January 20, 1914, while plaintiff and defendant were partners and composing said firm, negotiations were begun for the sale of said land to one L. M. Lockridge, and that through said negotiations said property was finally sold by said firm to said Lockridge for the sum of $60,000; and that the report of sale was approved by the county judge of Tarrant county, sitting in probate on July 14, 1914. Plaintiff further alleged In such action, where the petition alleged that he and defendant dissolved partnership that, on or about January 20, 1914, while plain- on March 1, 1914, and that it was agreed by tiff and defendant were partners, negotiations and between them at the time of said diswere begun for a sale of land, through which negotiations the property was finally sold; that solution that all sales pending, and which plaintiff and defendant dissolved partnership had been begun during the term of said parton March 1, 1914; that it was agreed between nership, should continue to completion, and them at the time that all sales pending and which that upon completion of said sales said Danhad been begun should continue to completion; and that upon completion defendant should have iel should have two-thirds of the commission two-thirds of the commission and plaintiff one- and said Lane one-third. He alleged that third-a special issue as to whether the sale in $1,000 of the $3,000 commission had been requestion was a pending deal at the time of the dissolution, and an instruction in connection tained by C. K. Lee, administrator of the therewith that "pending" meant remaining un- Mitchell estate, and was held by said Lee to

PLEADINGS.

[1] It is practically admitted by plaintiff in error, both in his oral argument and in his brief, that if the answer to special issue No. 1 is supported by the evidence, the judgment should be sustained. The jury found that the partnership contract between plaintiff and defendant terminated March 1st. Upon this point, while the evidence is conflicting, we are of the opinion that it is sufficient to sustain the finding of the jury. Mr. Lane testified, in part, as follows:

await legal adjudication. Lee was therefore | ter rested apparently without any further made a party defendant. In so far as the discussion or other agreement, they continissues involved, which are necessary to be uing to divide their profits and expenses as discussed, are concerned, the defendant de- during the previous year. nied that the dissolution of the partnership took place on March 1st, but alleged that said dissolution took place on January 1, 1914, and, while thereafter there was a semblance of partnership between him and plaintiff, yet on February 24th final dissolution of the partnership occurred, that the Mitchell deal was not then pending, nor was any agreement had between defendant and plaintiff as to the division of the commission on the sale of said property, and that in so far as the negotiations which finally resulted in the sale were concerned, they began subsequent to the dissolution of the partnership between him and plaintiff. The case was submitted to the jury on the following special issues:

"No. 1. When did the partnership contract between Lane, plaintiff herein, and defendant terminate? Ans. March 1, 1914.

*

**

"No. 2. What was the agreement between Lane and Daniel at the time of the dissolution Lane and Daniel at the time of the dissolution of the partnership as to the division of commission on the pending deals? Ans. Daniel was to get two-thirds and Lane one-third. "No. 3. At the time of the dissolution of the partnership between Lane and Daniel, was the sale of the Mitchell land a pending deal? By the word 'pending' is meant remaining undecided, in suspense, not terminated. Ans. At the time of the dissolution of the partnership the sale of the Mitchell land was a pending deal. "No. 4. At what time did Lane become a part-stay ner in the firm of Blanton, Freeman & Lane? Ans. March 1, 1914."

Upon the answers of the jury, the court rendered a judgment for plaintiff for the amount sued for; the defendant prosecuted this writ of error.

The uncontroverted evidence shows that the property sold to Lockridge was shown to him by Daniel about January 20, 1914, and that an attempt was made by Daniel and Lockridge to negotiate a trade for the land at $80 per acre, Lockridge to put into the trade some business property in the city of Ft. Worth at a valuation of $16,000, but that C. K. Lee, as administrator, declined to consider any trade, and as testified to by Judge Daniel, defendant:

"I did not try to handle that part any further than we did, because Lee told me they would not accept it, and I dropped that feature of it. I took it up again after that; that was on the 24th of February."

It seems that some time prior to January 1st the defendant told plaintiff that he was not satisfied with the division of the profits, to wit, two-thirds to him and one-third to plaintiff, the expenses in the same ratio, and that he would suggest for the following years another basis of division, to wit, that he, defendant, should have all the profits derived from the out of county business, one-half of the city business, and one-third of the business in the county, but outside of Ft. Worth. Plaintiff replied that he would see about it

*

"At the time the firm was dissolved there was an agreement between Daniel and myself in regard to any deals that were pending at that time. He mentioned it himself; he says, 'Now, all deals we have pending, we will still go ahead and divide the commissions as usual.' In fact, I was going to leave there a little before that; he asked me to stay until the 1st of March. told him that I would leave on the 1st of March. It was along about the 15th or 17th I I do not know exactly the date, but just right about that time I told him I was going to leave, going to change places, and he says: You stay until the 1st of March, the bills will be coming in then, and it won't be any trouble in settling up, and we will just settle up the bills until the 1st of March. ** * * I paid all the bills, my part of the bills, up to the 1st of March. * of February came up, I told him that I had The way that talk of the 22d made arrangements to leave there as soon as we could adjust things, that I was going in to another firm, and he says, 'Well, you better stay here until the first of the month,' which was the 1st of March. * My agreement with Blanton & Freeman as to when I was to start in was the 1st of March. That agreement was made with both of them. We made that agreement along about, I think, the middle of February, or maybe a little later. * * * I settled up in full with Judge Daniel by memorandum on the 1st of March for the expenses of the office for the month of January, but we did not pass any money; that was for all the back expenses that had fallen behind that we did not have the money to pay at the time. On the first of the month there was bills run over, and it had been a custom for bills to run over. Some bills had run over for several months, and I settled my whole part of it by memorandum; that is, by agreement on the 1st of March. I did and paid me the difference. That was about 30 not pay the money, though; he got the money days, I guess, after I left there. That settlement included the expenses of the firm for January and February.'

99

*

Mr. Daniel as to this feature testified, in part, as follows:

"While he [plaintiff] was a member of the chase it to see it. He looked at it twice; I firm I took the party out who finally did purtook him out to see it twice. Lane was at that time a partner in the firm; that is, he had been been up until the 1st of January. Lockridge I don't know when he left the firm he had and I first went out to the farm on the 20th of January. I do not know when Lane left the firm. I do not know when he formed the new partnership. I know when he left the office; that was on the 24th of February. I thought he was a member of the firm until the time he left, but I do not know that he was. * **When he told me after I found his name on the door [meaning the door of the firm of Blanton, Freeman & Lane], and he told me

fact, I was going to leave there a little before that; he asked me to stay until the 1st of March. He says, 'All the deals we have pending, we will go ahead and divide the commissions as usual.' **When I left the office, on February 25th, I did not agree with Mr. Daniel that whatever sales he made he would have the commission and whatever sales I made I would have the commission, except the Durrett-Vincent deal; I did not have any such agreement as 1. ACTION 4-GROUNDS-ILLEGAL OR IMthat with Judge Daniel. Just before I left there, when I had the Durrett-Vincent deal up and he had the Mitchell farm deal up, that made him a deal and me a deal, that is when I told him I would leave, as I was going to leave, and he said, 'Well, whatever deals we have on, we he said, 'Well, whatever deals we have on, we will divide the commission as we have been doing, as usual,' and I said it was all right."

In an action against an express company to recover money deposited with it by B. for transmission to plaintiffs and subsequently garnished by B., in which statutes of Wisconsin and the testimony of a practicing attorney as

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to the laws of Wisconsin were introduced, evi- the deceased, at New London in the state of dence held to show that the judgment against Wisconsin; that the money to cover the cost plaintiffs on service by publication in the action in which the writ of garnishment was is- of the casket, preparation of the body, etc., sued was a valid judgment under the laws of amounting to $327.50, plus $47.50 for the exWisconsin, though plaintiffs were sued in their press charges, had been deposited by said firm name. Frank Bokoski with the defendant's agent at New London for the plaintiff's use, after which the dead body was delivered to the