ing of the telegram would disclose. The First National Bank of Paris was the correspondent of the First State Bank of Deport, and the latter had an account with the First National Bank of Paris. The Deport Hardware Company had an account and deposit with the First State Bank of Deport. The First State Bank of Deport at the time charged the $5,350 to the account of the Deport Hardware Company, and the First National Bank of Paris charged the sum to the account of the First State Bank of Deport. As testified by the cashier of the First State Bank of Deport: "The way the First National Bank of Paris came to make the remittance was just simply because we did not have a correspondent in Chicago and the First National Bank of Paris was our correspondent." It was further testified: "There is not any charge among our banks for remitting money; it is purely a matter of accommodation. It is not necessarily done to hold the account and get the business, but, of course, that has a bearing on it, I suppose. I don't think it is necessarily done just to hold a man's business, but it is expected of course. If you have got a deposit to make you would make it with your correspondent." The witness further said: "We handled a number of transactions in the course of which we made payments of money to W. R. Scott, consisting of remittances sent from various Texas banks. Most of these were conditioned upon the delivery or production of bills of lading, but some were not." tions placed on the payment of the money to W. R. Scott prior to July 5, 1918. No notice of the restriction was received prior to the payment of Scott. On July 5, 1918, the amount of the draft, $5,350, was taken out of the sundry acwho has an account in his own name on the count and placed to the credit of W. R. Scott, books of the bank. This was done on July 5, 1918. He drew out this amount from time to time, and it was practically all paid out to him some time during the month of July." The Deport Hardware Company brings the suit for damages in the sum of $5,350, alleging negligence as follows: Texas, notwithstanding it had notice by receipt of the letters of June 26, 1918, from the National Bank of the Republic, and the National City Bank, of Chicago, that its telegram of June 24, 1918, had not been delivered to the National City Bank of Chicago, and that the National City Bank of Chicago had received the said sum of $5,350 for the use of W. R. Scott without the restrictions contained in the telegram of June 24, 1918, and that said amount would be paid to the said W. R. Scott within a few days from said date, negligently and carelessly failed to notify the National City Bank of Chicago, Ill., the bank to which said remittance of $5,350 had been made, of the restrictions on the payment of said money to the said W. R. Scott, requiring the said National City Bank of Chicago, prior to the payment of said money to said Scott, to require the said Scott to deliver to it, the said City National Bank of Chicago, for the use of Deport Hardware Company, the said bill of lading covering the 10 new model Ford touring cars as set out in the telegram of June 24, 1918, although, as plaintiffs aver, it had ample time in which to do so prior "That said First National Bank of Paris, The cashier of the First National Bank of to date of payment of the money to said Scott Paris testified: "I was called over the telephone by Mr. Grant (cashier of the First State Bank of Deport) to transfer funds for the benefit of the Deport Hardware Company to the City National City Bank of Chicago. He dictated a telegram that he wished me to send to the National City Bank, and I took it down just as he instructed me to do, and protested that it was a dangerous thing to undertake to do, that it was complicated. I refused at first to undertake it, on account that we would have to use other agencies to make the payment, and that I did not want to be responsible for it. I told him I would send it only at his risk, and Mr. Grant said to send it. What I meant by his risk, if anything went wrong, the Deport bank would back me up. The Corn Exchange National Bank of Chicago is the correspondent of the First National Bank of Paris. We have never had an account with the National City Bank of Chicago, and keep no money there. In sending this telegram I was representing the First State Bank of Deport and was acting under the instructions of Mr. Grant. I did just simply what he told me to do, and we had no interest in it whatever." Mr. Feussle, assistant cashier of the National City Bank of Chicago, testified: "I did not receive any notice from the First National Bank of Paris, Tex., of any restric by the National City Bank of Chicago, and that by reason of said failure and the negligence and carelessness of said First National Bank of Paris the National City Bank of Chicago on July 5, 1918, paid over the said sum of money to the said Scott without securing the bill of lading and depriving them of said sum of money and causing them to suffer a loss and damage of $5,350, with legal interest from June 24, 1918." The defendant answered by general denial, and specially that the proximate cause of the damage sued for was negligence of the Western Union Telegraph Company, and not this defendant, and further that the defend. ant was not guilty of any negligence. The defendant further pleaded that the First State Bank of Deport promised and guaranteed to protect it against any loss or dam. age on account of the remittance, and that in the remittance the said First State Bank of Deport was acting as the agent of the plaintiff. The case was submitted to the jury on the following special issues: "Question 1. Was the defendant, the First National Bank of Paris, guilty of negligence in failing to take any steps to advise the National City Bank of Chicago of the restrictions placed on the payment of the $5,350 after receiving (232 S.W.) the letters of June 26, 1918, from the National | egram, which was written out by the Deport Bank of the Republic and the National City Hardware Company, and which specified the Bank of Chicago? Answer: No. "Question 2. If you answer the preceding question Yes, then you will also answer the following questions: Do you find from a preponderance of the evidence that prior to making any remittance for the First State Bank of Deport for the benefit of the Deport Hardware Company the defendant and the First State Bank of Deport, or Joe Grant, as president of the First State Bank of Deport, made an agreement that said remittances would be made at the risk of the First State Bank of Deport? Answer: The court entered judgment in accordance with the verdict in favor of the defendant. E. S. Connor and Edgar Wright, both of Paris, for appellant. Long & Wortham and A. P. Park, all of Paris, for appellee. LEVY, J. (after stating the facts as above). [1] The first assignment of error is: "The verdict of the jury is contrary to and wholly unsupported by any evidence whatsoever, in that there is absolutely no evidence to support the answer of the jury made to the first question submitted to them by the court; the undisputed evidence showing that after the receipt of the letters referred to in the first question that the First National Bank of Paris failed to take any steps whatever to advise the National City Bank of Chicago of the restrictions placed on the payment of the $5,350, and failed to exercise any care whatever to advise the National City Bank of the restrictions placed upon the payment of said money." The appellee objects to the consideration of the assignment because "the issue made the basis of the assignment was not excepted to before the charge of the court was read." The objection of the appellant was incorporated in the motion for new trial. The assignment is and should, we think, be considered as a complaint of the verdict, as being without sufficient evidence to support it. And the complaint is, we think, to the extent that the evidence fails as a matter of law to support the verdict of the jury. It is believed that the assignment may legally be considered. Express & Baggage Co. v. Ablon, 218 S. W. 1030. [2] Looking at the evidence from the standpoint of the parties and the duties and liabilities of each, it fully appears that the Deport Hardware Company wanted to pay $5,350 to W. R. Scott at Chicago for 10 Ford automobiles, and selected the National City Bank of Chicago as the agency to receive and pay over the money to W. R. Scott, conditioned upon his "delivery" to that bank of "signed bill of lading, covering 10 new model Ford touring cars complete, May and June motors, consigned to Deport Hardware Company." The order for the payment of the money by the National City Bank was to be in the form of and in accordance with a tel condition upon which the money was to be paid over to W. R. Scott. The First State Bank of Deport, having no correspondent at Chicago, and under instructions from the Deport Hardware Company, procured its correspondent, the First National Bank of Paris, to send the telegram, and transmit the money, as instructed. The First National Bank of Paris consented, and undertook to send the telegram and transmit the money in accordance with the terms of the instructions. The wording of the telegram received and transmitted by the First National Bank of Paris plainly disclosed to the First National Bank of Paris that the Deport Hardware Company was unwilling to have, and did not authorize, the payment of the money to Scott except upon the condition that the bill of lading for the transportation of the automobiles be delivered by Scott to the bank making the payment to him of the money. The First National Bank of Paris, having consented to make the remittance of the money in accordance with the instructions which the telegram directed and empowered it to execute, was under the legal duty to use due care and diligence in performing the task which it has set itself to do. Did the defendant bank therefore under the circumstances exercise due care and diligence? It appears conclusively that the defendant bank was informed by the receipt of the letter of June 26 signed by the manager of the collection department of the National Bank of the Republic of Chicago that said bank had received the telegram of June 24, sent by the defendant bank to the National City Bank of Chicago. The letter was on the letterhead of the National Bank of the Republic, and literally set out the wording of the telegram sent by the defendant bank to the other bank. This letter also informed the defendant bank the telegraphic order to pay the money "will have our careful attention." And the defendant bank reasonably understood from the letter of June 25 from the National City Bank of Chicago that it had not received the telegram of June 24. In this letter mention was made only of receipt of the draft, and no mention was made of the telegram or its receipt. The defendant bank knew then that the telegraph company had negligently failed to deliver to the National City Bank the telegram exhibiting to it the restrictions and conditions required for the payment of the money to Scott. And the defendant bank reasonably knew in the circumstances that on account of the misdelivery of the telegram the National City Bank of Chicago would not have information, unless further advised, of the restrictions and condition placed on the payment of the $5,350 to Scott. And it conclusively appears from the evidence that the defendant bank Glass, Estes, King & Burford, of Texarkana, for appellants. C. S. Todd, of Texarkana, for appellee. HODGES, J. We have again gone carefully over the facts of this case, and are unable to discover any reason for changing the judgment of affirmance. In this appeal there is practically but one question involved did not, after knowing of the misdelivery of the telegram, take any steps to advise the National City Bank of Chicago of the condition and restriction upon the payment of the money over to Scott, and that on July 5 the National City Bank of Chicago, not having received any instructions in accordance with the telegram, paid Scott the money. The proximate cause of the loss, it would conclusively appear from these facts, was the-that is, were the depredations complained omission on the part of the defendant bank of by the appellee committed on his land? to advise the National City Bank of Chicago, If they were, the damages awarded should having ample time to do so after knowledge be sustained. If they were not, the judgof the misdelivery of the telegram, of the ment of the trial court should be reversed. condition and restriction placed upon the As stated in the original opinion, the main payment of the money to Scott. It does ap- question can be answered by determining pear, as contended by appellee, that the let- the true location on the ground of the west ter of the defendant bank, in inclosing the boundary line of section 3. A re-examination draft, used the words "Pay Scott as per of the facts has tended to strengthen rather wire of June 24 $5350.00." Even so, the than weaken our former conclusion upon that knowledge on the part of the defendant bank issue. In addition to the evidence furnishthat the telegram had miscarried would put ed by the witness Moore as to the measureit upon notice and require it to discharge ments made by him from state line, the the duty of acquainting the National City recognized east boundary line of section 3, Bank of Chicago of the instructions and con- the appellants' witness Sims testified to dition contained in the telegram. The neg- measurements which he made from other ligence, if any, of that bank would not avail recognized corners, that locate the west the defendant bank, sued, as it is, for its boundary line of section 3, so as to place the own negligence proximately causing the loss. land upon which the trespasses were comAnd the petition of the plaintiff is not hold-mitted within the limits of that claimed by ing, nor undertaking to hold, the defendant bank for any default on the part of the National City Bank of Chicago. the appellee. It may be said that the evidence in this case conclusively establishes the following [3] The agreement on the part of the First facts: First, that the west boundary line of State Bank of Deport to relieve the defend- section 3 can be located upon the ground ant bank from liability for the transmission with certainty by course and distance alone, would not, and does not, relieve the defend- as shown in the field notes; second, that the ant from omissions negligently done by it. bearing trees and other monuments called And no other ground of negligence than per- for in the field notes at the termini of the sonal omission is pleaded against defendant. west boundary line of the survey cannot be The judgment is reversed, and judgment is found, and the northwest and southwest corhere rendered in favor of the plaintiffs forners cannot now be located from the field here rendered in favor of the plaintiffs for notes, except by course and distance; third, the sum sued for, and for all costs of court that when those corners are located by course and of appeal. and distance, according to the description contained in the patent, the west boundary line of section 3 is east of the land upon which the appellee claims the trespasses were committed, and he is therefore entitled to recover his damages. In thus locating the west boundary line of section 3, no ambiguity is disclosed in the field notes of the patent when applied to the ground. BRAUMILLER et al. v. BURKE. (No. 1385.) (Court of Civil Appeals of Texas. Texarkana. Feb. 25, 1915.) Evidence +387(4)-Of marked line conflicting with boundary description is inadmissible. In an action where the location of a bound ary line was in controversy, evidence of the existence of a marked line, which did not conform to the description of natural and artificial monuments in the patent, and conflicted with the courses and distances in the field notes, is inadmissible as parol evidence contradicting the field notes. Appeal from District Court, Bowie County. On motion for rehearing. Motion overruled. For former opinion, see 173 S. W. 609. See, also, 230 S. W. 400; 232 S. W. 907. Counsel for the appellants earnestly insist that, inasmuch as there was evidence of an old marked line indicating an old survey, about 60 varas west of the point where course and distance would locate this disputed line, and as there was testimony tending to show that this old marked line was the reputed west boundary line of section 3, an issue of fact as to the true location of that line was raised by the evidence, which should have been submitted to the jury. That contention might be entitled to some consideration, but for the rule that boundary lines For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) stantial damages for the removal of timber and must be located by the description contained | session of the defendants, and to recover subin the grant, and parol testimony cannot be received for the purpose of varying or contradicting that description. Brodbent v. Carper, 100 S. W. 183; Anderson v. Stamps, 19 Tex. 465; Williams v. Winslow, 84 Tex. 371, 19 S. W. 513; Thompson v. Langdon, 87 Tex. 254, 28 S. W. 931; Jamison v. N. Y. & T. L. Co., 77 S. W. 969; Watts v. Howard, 77 Tex. 71, 13 S. W. 966; Robertson v. Mosson, 26 Tex. 248. To locate the west boundary line of section 3 at the point where the appellee claims it should be conforms exactly with the field notes contained in the patent. To locate it at the point where the appellants claim it should be would extend the north and south boundary lines of the survey from 60 to 109 varas beyond the distance called for in the patent, and thus contradict the written description. court's 247 (7)-If appellate 2. Courts judgment is not final, questions will not be certified to the Supreme Court. a Court of Civil Appeals and is not final, the In a case in which the judgment is not of questions therein need not be certified to the Supreme Court, regardless of any conflict between the decision in that case and the decisions of other Courts of Civil Appeals. 3. Appeal and error 43-Finality of judgment of appellate court should depend on "case" made by pleadings, not on evidence presented. The determination of whether the "case," which means suits, causes, or actions, is one in which the judgment of the Court of Civil Appeals is final, should depend on the case they went to trial, not on the questions controverted at the trial; otherwise, in the same case on the same pleadings, the finality of the judgment rendered on appeal after different trials would depend on the evidence introduced at the particular trial. If the legal effect of the evidence relied on by the appellants was to identify a location called for by the natural or artificial objects referred to by the surveyor in his field notes, the fact that it conflicted with the calls for course and distance would be immaterial. But under the facts of this case it can be used for only one purpose-made by the pleadings of the parties on which that is, as proof that this old line is the one actually traced by the surveyor. This, in legal effect, contradicts the only description in the patent by which that boundary can now be located. Under the rule laid down in the authorities referred to, such evidence cannot be considered. In a suit of this character a boundary cannot be established by showing that the actual survey was made at a point different from that called for in the patent. In searching for the footsteps of the surveyor, the parties must be guided by his written description of the lines he traced. This rule is not ignored in subordinating calls for course and distance to those for natural and artificial objects, in cases where a conflict is shown. In such instances the written description still controls; a portion of it being disregarded merely to reconcile a conflict in the writing. Under the evidence adduced in this case, there was no issue for the jury as to the location of this disputed line. Only one verdict could have been rendered. The motion for rehearing is overruled. BRAUMILLER et al. v. BURKE. (No. 1385.) (Court of Civil Appeals of Texas. Texarkana. May 2, 1921.) 1. Appeal and error 43-Suit to recover land and damages for removal of gravel is not a "boundary case," in which appellate court's judgment is final. An action to recover possession of land, claimed by plaintiff and which was in the pos [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Case.] 4. Courts 247 (7)-Decision that marked line cannot overcome description in field notes held not contrary to decisions of other appellate courts. A decision that evidence of a marked line, which did not agree with the courses and distances in the field notes or with described monuments, is incompetent to contradict the boundary established by the courses and distances, does not conflict with decisions of other Courts of Civil Appeals that a marked line, which was presumably made by the original surveyor, was evidence of the location of the boundary, though it was not on the line marked on the płat. Appeal from District Court, Bowie County. Action by C. C. Burke against Nick Braumiller and another. Judgment for plaintiff, and defendants appeal. On motion to certify questions to the Supreme Court. Motion overruled. See, also, 173 S. W. 609; 230 S. W. 400; 232 S. W. 906. Glass, Estes, King & Burford, of Texarkana, for appellants. C. S. Todd, of Texarkana, for appellee. HODGES, J. A statement of most of the material facts of this case, together with the substance of the pleadings, will be found in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Braumiller et al. v. Burke, 173 S. W. 609. [ claim of title and that the defendants had That publication, however, does not contain the opinion of this court on the motion for a rehearing, in which the facts are more fully stated. The motion to certify to the Supreme Court the questions involved was overruled in February, 1915. An application to file a petition for a writ of mandamus to compel a certification of the questions involved in the appeal was granted several years ago. In view of that proceeding, which is still pending, we think it proper to state the reasons why this court refused to certify. wrongfully removed the gravel, directed a verdict in favor of the plaintiff upon those issues, and submitted only the question of the value of the gravel removed. The jury returned a verdict in the plaintiff's favor for the land, and fixed the value of the gravel at $267.83. A judgment was accordingly entered for that sum against all of the defendants, jointly and severally, including Munz, who made no actual claim to the land. From that judgment all of the defendants appealed to this court, and are parties to the mandamus proceedings. Practically the only question complained of on the appeal was the ruling of the trial court in directing a verdict in favor of the plaintiff for the title and possession of the First, we did not then regard this as a boundary case, in which the judgment of a Court of Civil Appeals was made final, but one which the Supreme Court might review upon a writ of error; second, we did not think, when the facts involved were consider-land, which carried with it some damages ed, that there was any conflict between the legal conclusions which controlled the judgment in this case and those announced in the cases relied on by the applicant for the writ of mandamus. for the gravel removed. The contention was that under the evidence that issue should have been submitted to the jury. While no objection was made on appeal to the valuation placed by the jury upon the gravel, it [1] The plaintiff's amended original peti- was claimed that no damages whatever tion was in the usual form of an action to re- should have been allowed. This court afcover possession of a tract of land. He claim- firmed the judgment upon the ground that ed title to 10 acres, on which was located a the evidence showed as a matter of law that gravel pit. In addition to the formal aver-the plaintiff owned the land in dispute. An ments usual in such cases, he alleged that able and elaborate motion for a rehearing was the defendants had cut and removed from the land timber of the value of $500 and 5,000 yards of gravel, of the value of $1,500. He asked for judgment for the title and possession of the land and for the value of the timber and the gravel removed. The defendants, Braumiller, Eldridge, and Munz, in their answer put in issue, not only the title to the land, but the conversion of the timber and the gravel. The proof showed that the plaintiff and the defendants Braumiller and Eldridge owned adjoining tracts of land, and that the issue of title was determined by the location of the west line of section 3; the admitted boundary separating the two tracts. After offering evidence tending to establish that line according to his claim, the plaintiff also proved that the three defendants had removed gravel from an area 44 by 40 yards and 32 feet deep; that this gravel was worth in the market at that time 25 cents per cubic yard. In resisting the plaintiff's claim to title, the defendants proved ownership in Braumiller and Eldridge to an adjoining tract of land; that issue being narrowed to the location of the west boundary line of section 3. The defendant Munz claimed no title; the evidence showing that he removed the gravel by permission of Braumiller and Eldridge. The defendants also offered evidence tending to prove that the gravel was worth not more than 15 cents per cubic yard. At the conclusion of the evidence, the trial court, being of the opinion that the proof conclusively established the plaintiff's presented, which, after careful consideration, was overruled. The motion to certify followed, and it was later overruled without any written opinion, but for the reasons before stated. [2] If we were correct in concluding that this is a case in which the judgment of this |