equally the profits and losses. The exclusion of the evidence referred to is the principal ground urged for a reversal.

A motion was made by appellee to strike out the bill by which the exception to that ruling was reserved, on the ground that it was not filed during the term at which the trial occurred. The file mark on the bill bears a date prior to the adjournment, but it

is made to appear that it was not only put upon the paper after adjournment, but was indorsed by a person who had ceased to be the clerk after the court had ended. In the same affidavits, however, it is made to appear that the bill of exceptions was found among the papers of the cause at the time it was so indorsed; that it was approved by the judge on the 10th day of November, 1894; and that the court adjourned that day. We think, if the bill of exceptions was deposited with the clerk before court adjourned, that would be sufficient, whether the file mark was indorsed or not. And the circumstances make it probable that this was done in this instance. At any rate, they are, we think, such as to call for some showing to the contrary from the party seeking to exclude the bill. We are also of the opinion that the exclusion of the evidence was error. The credit was sufficiently set up in the pleadings and in the objections to the auditor's report to admit the evidence. If the expenses incurred were necessary and legitimate, as defendant might have shown they were, no express agreement of his copartner to pay his portion of them would be requisite.

There is no bill of exceptions showing that counsel used the language complained of. It is mentioned in the motion for a new trial, but that is not sufficient.

A general verdict was all that the charge of the court required, and that found by the jury was a sufficient response. If the appellee will remit $150, the only error will be thereby cured, and the judgment can be reformed and rendered, but appellant will be entitled to costs of appeal.

The court allowed the auditor $100, and adjudged half of it against each party, and appellee assigns this as error. We think this We think this was right. Both parties sought settlement, and each claimed of the other sums that were not recovered, and each was in fault in allowing their accounts to stand in such condition so long that the services of the auditor were necessary.

Unless appellant shall within 15 days file a remittitur of $150, the judgment will be reversed and the cause remanded.

L. &. H. BLUM LAND CO. v. HARBIN et al. (Court of Civil Appeals of Texas. Nov. 27, 1895.)

LIEN OF ATTACHMENT-PRIOR UNRECORDed Deed, Under Sayles' Civ. St. art. 4332, providing that all sales of land shall be void, as to

creditors without notice, unless they are recorded, one who claims under an attachment levied before a prior deed was recorded has the burden of showing that when the attachment was levied he had no notice of the deed.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Trespass to try title by L. & H. Blum Land Company against J. A. Harbin and others. Judgment was rendered for defendants, and plaintiff appeals. Affirmed.

Jasper N. Haney and F. O. McKinsey, for appellant. H. L. Moseley, for appellees.

FLY, J. Appellant instituted this suit to recover 40 acres of land in Parker county. The case was tried without a jury, and judgment rendered for appellees.

It was agreed that J. O. Johnson was the common source. Appellant claimed through a judgment against Johnson for debt, and foreclosure of an attachment lien, of date November 21, 1885, on the land in controversy. The judgment was dated April 12, 1886. It seems that it became dormant, and was revived on April 16, 1890, and an order of sale was issued on January 13, 1891, by virtue of which the land was sold to Hyman Blum for $100, which was credited on the judgment. On August 28, 1891, Hyman Blum conveyed the land to appellant for what is called in the statement of facts "a proper consideration." On September 27, 1883, J. O. Johnson, the common source, conveyed the land to E. S. Davis, who on March 5, 1884, conveyed the land to I. N. Reeves, who on July 8, 1884, by general warranty deed, conveyed the same to appellee J. A. Harbin. All of these deeds were recorded on March 6, 1886. Appellees went into possession of the land in the latter part of 1888. There was no effort upon the part of appellant to show that it or L. & H. Blum did not have notice of the unrecorded legal title of appellees, and we therefore conclude that they had notice.

Article 4332, Sayles' Civ. St., provides that all sales of lands "shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law." It is held that the statute only applies to creditors who have acquired some character of lien upon or interest in the land. Grace v. Wade, 45 Tex. 522; McKamey v. Thorp, 61 Tex. 648. The equity of the statute can only be appropriated by creditors who are not charged with notice of the unrecorded deed prior to acquiring their lien, and, when the lien has been secured without notice, the purchaser at the sale under execution or order of sale is protected in his. title, whether he have knowledge of the unrecorded instrument at the time of his purchase or not. Ayres v. Duprey, 27 Tex. 594; Parker v. Coop, 60 Tex. 111; Linn v. Le Compte, 47 Tex. 440; Wright v. Lassiter, 71

Tex. 640, 10 S. W. 295. It was held by the trial judge that the burden of proof was upon appellant to establish its character as an innocent purchaser, and that failing to prove that it, or those under whom it claims, did not have notice of the unrecorded legal title of appellees, it had failed to make out a case. We are of the opinion that this ruling was practically correct. The duty devolved upon appellant of at least showing that, when the attachment was levied, L. & H. Blum had no notice of the unrecorded title of appellees. This it did not do, and the failure to do so is as fatal as would have been a failure to prove payment of a consideration for the land. Watkins v. Edwards, 23 Tex. 443; Rodgers v. Burchard, 34 Tex. 441; Thompson v. Westbrook, 56 Tex. 265; Bremer v. Case, 60 Tex. 151; Illies v. Frerichs, 32 S. W. 915 (decided by this court at this term). The judgment will be affirmed.

EMBREE-MCLEAN CARRIAGE CO. v.

LUSK.

(Court of Civil Appeals of Texas. Nov. 21, 1895.) SALE-REQUISITES OF CONTRACT-WHEN TITLE PASSES-RESCISSION BY BUYER.

1. Defendant sent plaintiff an order for a carriage, on a printed form, from which a stipulation that the purchaser should give a note se-cured by chattel mortgage had been stricken, with the consent of plaintiff's agent, and in which an agreement by defendant to give his note payable in four months was inserted. Plaintiff approved the order, and notified defendant of a shipment of the carriage, and sent a blank note containing a chattel mortgage, which defendant refused to sign, as being contrary to the agreement. Held, that the contract was completed on plaintiff's approval of the order and notification of shipment.

2. An order for a carriage sent by defendant to plaintiff on a printed form, from which a clause requiring the purchaser to give a note and mortgage for the price was erased, and in which an agreement by defendant to give his note payable in four months was inserted, was approved by plaintiff, and the carriage was shipped to defendant, with a bill of lading giving him an unconditional right to take possession. Plaintiff also sent a blank form of note and mortgage, which defendant refused to sign, as contrary to the agreement, and thereafter refused to take the carriage, though notified that no mortgage would be required. Held, that since the signing of the note was merely a condition subsequent, title passed on delivery of the carriage to defendant.

3. Where plaintiff approved an order for a carriage sent by defendant on a printed form, from which a clause requiring a purchasemoney mortgage was erased, and in which an agreement by defendant to give a note at four months was inserted, and the carriage was shipped to defendant with a bill of lading giving him a right to immediate possession, the fact that the blank note thereafter sent by plaintiff for defendant's signature contained a chattel-mortgage clause did not entitle defendant to rescind the contract.

of a carriage, or damages for breach of contract to buy. tract to buy. Judgment for defendant, and plaintiff appeals. Reversed.

Rogers & Herbst, for appellant. Searcy & Garrett, for appellee.

WILLIAMS, J. To an agent of appellant, appellee at Brenham, Tex., gave an order, addressed to appellant at St. Louis, for a buggy, of specified character and at a stipulated price, delivered "free on board cars" at St. Louis, on a credit of four months. The blank on which the order was written contained a stipulation that, for the price, appellee should give his note and a chattel mortgage on the vehicle, but appellee would not agree to this; and, with the assent of the agent, this clause was stricken out, and an agreement by appellee to give his note, payable at four months, inserted. The order contained the provision that it was subject to appellant's approval, and would not be countermanded. It was forwarded to St. Louis, and in due time the buggy was delivered free on board the cars at that place, consigned to appellee at Brenham; and a bill of lading was forwarded to him, entitling him, unconditionally, to demand and control it. At the same time, appellant sent to appellee an invoice on which was printed the statement, "Terms, 4 mos. note, subject to lien expressed in note given in settlement." Appellant, also, in a letter, requested appellee to call at bank and sign note on arrival of buggy. also sent to a bank in Brenham a blank note, with chattel mortgage attached, to be signed by appellee, and this was presented to him for signature. He refused to sign it because it was not in compliance with the agreement, which was shown to the bankers, but the bankers stated that they had no authority to take any other instrument. Appellee thereupon, on July 6, wrote appellant, stating these facts, in substance, and stating that the buggy, when it arrived, would be subject to their order, as he would not take it on such terms. The buggy reached Brenham July 7th, and was unconditionally tendered to appellee on the 8th, and at all times since has been subject to his order. On July 8th appellant replied to appellee that the clause stipulating for a chattel mortgage had been left in the note by mistake, and inclosed a plain note for his signature. This appellee refused to sign, and has ever since refused to take the buggy or pay for it.

It

This suit, after the expiration of four months, was brought to recover the price of the vehicle, or, in the alternative, for damages for breach of contract. The charge of the court below instructed, in substance, that there was, under the facts, no contract for the sale of the buggy, and a verdict was ac

Action by the Embree-McLean Carriage Company against William Lusk for the price

tention of appellee is-First, that there was no completed contract, because there was no acceptance of his offer; and, second, if there

was, the act of the appellant in demanding a mortgage was a repudiation of it, such as authorized appellee to treat it as at an end. We do not assent to either position. When appellant approved the order, and notified appellee of the shipment of the buggy, there was an acceptance of appellee's offer, and the contract was complete, and when it delivered the buggy in accordance with the contract the title passed. Benj. Sales, pp. 655, 665. The delivery on board cars was a delivery to appellee, especially as it was unconditional, and placed the property at his disposal. The giving of the note was not contemplated in the contract as a condition precedent to the passing of title to the buggy, nor was it so treated by appellant. It was simply an act to be performed by appellee in providing for the payment after the contract for the sale was completed and executed by delivery. Though the bill head on which the invoice was written contained the language referred to, the letter which accompanied it, as well as the bill of lading, showed that the buggy was to be delivered unconditionally. While there was a request to sign the note which was sent, this was not made a condition of the delivery of the buggy, nor did it change in any way the terms of the contract which had been made. The order and its acceptance, by shipment, completed the contract, and the giving of the note was an act to be subsequently performed. Appellee had the right to the buggy, and admits that he could have gotten it without signing the note, and was not bound or required to do anything not contemplated by the contract. He did not offer a note such as the contract called for. The mere oversight of leaving in the form of note the chattel-mortgage clause was not to be treated as a repudiation by appellant of the contract, which, as we have seen, was complete, because it could not affect appellee's rights. He had the buggy, and was entitled to hold it, and this appellant has never denied. The sending of the note was at most a mere request for appellee to do something which he was not bound to do, and as it could not, and was not intended to, prejudice his rights under the contract, we cannot see that it gave him a just right to rescind or repudiate it. Without considering the assignments in detail, what is said will suffice for another trial. Reversed and remanded.

WAGNER v. ISENSEE et al. (Court of Civil Appeals of Texas. Nov. 21, 1895.)

PARTITION-COMPETENCY OF WITNESS-TRANSACTION WITH DECEDENT.

In partition by persons claiming title to one-half the tract through a deed from their deceased father and two-thirds of the remainder as heirs of their mother, against a brother holding the remaining sixth as heir of the mother, and claiming an interest under the deed from the father, testimony of defendant as to state

ments by the father tending to show that the deed was made in trust for all the children, and as to the transaction by which the trust was alleged to have arisen, having no reference to the title derived by descent, is not within Rev. St. art. 2248, making a party to a suit "by or against heirs or legal representatives of decedent" incompetent to testify as to a transaction with decedent.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Mary Isensee and another against John Wagner for partition of land. Decree for plaintiffs, and defendant appeals. Reversed.

F. F. Chew, Sr., for appellant. W. P. Hamblen, for appellees.

WILLIAMS, J. This was a suit for partition of real estate in Houston, in which appellees, who were plaintiffs below, claimed one-half of it under a deed from their deceased father to to Charles Wagner, and claimed two-thirds of the other half as heirs of their mother, acknowledging the appellant, defendant below, who was their brother, to be the owner of the other third of such half. Appellant claimed not only the interest admitted by plaintiff to belong to him, but also a third of the father's half, on the ground that the deed made by the father before his death to Charles Wagner was made upon an express trust by which Charles Wagner was to hold the legal title in trust for all of the children. After the evidence was heard, the court instructed the jury that there was not sufficient evidence to establish the trust asserted, and this instruction is assigned as error. Before the suit was brought Charles Wagner had conveyed to his sister, Mrs. Isensee, one-half of the interest claimed under the deed from the father. Appellant himself was the only witness who testified to the nature of the transaction in which the deed was executed to his brother Charles, and without his testimony it is clear that there would not be evidence sufficient to submit to the jury. Appellees contend that under article 2248, Rev. St., he was incompetent to testify as to statements by or transactions with his deceased father. In order to disqualify a witness under that provision, the suit must be one "by or against heirs or legal representatives of a decedent." This means that the suit must either be by heirs or against heirs in their capacity as such. The suit by plaintiffs was partly as heirs of their deceased mother and against defendant as one of such heirs, but did not involve any transaction with or statement statement by her. Hence that fact cannot affect the competency of the witness to testify as to transactions with the father. The title asserted by plaintiffs under their father was claimed through the deed to Charles Wagner, and not by inheritance; and the claim of appellant also was asserted under that deed as one of the beneficiaries of the trust alleged to have been created by it. Thus both sides were

A demurrer to the petition was sustained, and plaintiffs appeal. Reversed.

F. E. Beckett and Stephens, Huff & Fain, for appellants. Lucky & Berry, for appellee.

The allegations in the answer are not entirely consistent with each other, some of them seeming to assert that the deed never took effect, for want of delivery, and others that, if it did, it vested the legal title in the grantee in trust for the grantor. If appellant's claim should be that the title remained in John Wagner, and that one-third of the property descended to him, then his attitude would be that of an heir asserting a claim as such against plaintiffs, and would seem to fall within the very language of the statute; and he could not, in support of such a claim, testify to a transaction with or statement by decedent. Parks v. Caudle, 58 Tex. 216. But, as his testimony was competent to establish a trust in his favor under the conveyance to Charles Wagner, the question occurs, was there sufficient evidence tending to substantiate his allegations in this regard to require the court to submit the question to the jury? and we are of the opinion that there was. The testimony was as to the transaction itself in which the trust is claimed to have been created, and not merely to declarations of the alleged trust. Hence the decisions stating the rule in such cases where it is sought to establish the trust by proof merely of declarations of the trustee are not applicable. But, even if they were, we think the facts and circumstances appearing in evidence were sufficient to submit to the jury. Grace v. Hanks, 57 Tex. 14; Neyland v. Bendy, 69 Tex. 711, 7 S. W. 497; Baylor v. Hopf, 81 Tex. 637, 17 S. W. 230. As the case is to be tried again, we make no comment on the evidence. Reversed and remanded.

STEPHENS, J. Action by appellants for deceit in sale of a worthless binder to them, in the midst of harvest, alleging the loss of the purchase price, and special damages, such as loss of grain, and expense of hiring other machines, and paying the wages of extra hands, and the like, to save the crop, caused by delay in testing the binder, etc. Exenplary damages also claimed. Besides a general demurrer to the whole petition, several exceptions to different parts thereof, which, though termed "special exceptions," were but so many general demurrers to different items of actual damage claimed, were sustained, and the petition dismissed. This action was erroneous, and requires the judgment to be reversed.

Had special exceptions been addressed to some of these items, showing wherein they were defectively stated in matter of form, they should have been sustained; but, as a sufficient amount of actual damage was properly alleged, as against a general demurrer, to give the court jurisdiction, the petition should not have been dismissed. Railway v. Granger, 85 Tex. 574, 22 S. W. 959. No useful purpose would be subserved by here copying the petition and exceptions, as the case just cited illustrates the rule, and it would be too late, upon another trial, to introduce for the first time exceptions merely to the form of the pleading. We need not determine whether the allegations were sufficient to support the claim for exemplary damages, as in not clearly charging that appellee company authorized or ratified the fraudulent and deceitful conduct of its agent. The seeming defects in the petition may be easily cured by amendment upon another trial. Railroad Co. v. Gracia, 70 Tex. 207, 7 S. W. 802. For the error in dismissing the petition on demurrer, the judgment is reversed, and the cause remanded.

HUNTER, J., not sitting.

dered for defendant, and plaintiff appeals. Reversed.

J. H. & W. W. Beall, for appellant.

STEPHENS, J. This suit was brought by appellant in the ordinary form to recover of appellee a section of school land in Fisher county. The court found "that on July 12, 1890, defendant executed a deed of trust to Elliott & Roe, creating a lien on the land in controversy; that on the 1st day of November, 1892, the lien created by deed of trust was duly foreclosed in accordance with law, and that on said date L. C. Foster, trustee in said deed of trust, conveyed the land in controversy to plaintiff in this cause." The single conclusion of law upon the above findings of fact was "that the facts in this cause are insufficient to entitle plaintiff to recover in a suit of trespass to try title." It is fairly Inferable from the record, and seems to have been assumed by both parties and the court (though we find no direct proof of it), that prior to the making of the deed of trust appellee had purchased the land from the state, but had not, at the time of the trial, entirely paid for it. The brief of appellant suggests that because the fee was still in the state, though the contract of purchase was yet in force, the court took the erroneous view that an outstanding title was shown. But, whatever may have been the view of the court, we are of opinion that the judgment was erroneous. It is apparent that both parties claimed under a common source, and that appellant had the superior title thereunder. Dycus v. Hart, 2 Tex. Civ. App. 354, 21 S. W. 299; Hardware Co. v. Davis, 87 Tex. 146, 27 S. W. 62. The homestead claim of appellee was not passed upon by the trial court, and, as the evidence found in this record is not conclusive on that subject, we decline to pass upon it. The office of this court is one of review merely, and not of trial in the first instance. The judgment is reversed, and the cause remanded.

1. In an action for injury to a soda fountain leased to defendant with an agreement for a safe return, where defendant alleged that, if it was injured, the injury was due to plaintiff's negligence in causing it to be returned without sufficient packing, and there was no evidence

of an agreement that plaintiff was to furnish means of transportation, defendant was not prejudiced by the opinion of a witness that the apparatus for transportation was properly prepared, since, in the absence of such agreement, it was defendant's duty to exercise ordinary care in its transportation.

2. In an action for injury to a soda foun

tain while in defendant's possession as lessee, under an agreement for its safe return after the season, the measure of damages was the difference between the value of the property in the condition in which it was returned, and the value it would have had at the time of return, if it had been returned in good condition, added to the stipulated rental, with interest from the date of return.

Appeal from Bosque county court; W. B. Thompson, Judge.

Action by Hughes Bros. against J. C. Phillips. Judgment for plaintiffs, and defendant appeals. Affirmed.

Wm. M. Knight, for appellant.

NEILL, J. This suit originated in the justice's court, and comes to us on appeal from a judgment rendered in favor of appellees in the county court. Appellees, who were plaintiffs below, alleged in their petition that they owned a certain soda-fount apparatus, which appellant rented from them for the purpose of moving from Meridian to Iredell, Tex., and using it during the summer of 1892; that appellant agreed to pay them $20 for its use, and after the season was over to safely return it to them; that they delivered the fount to appellant in good condition; that it was reasonably worth, at the time, the sum of $200; that the property, on account of the negligence of appellant and his servants in handling it, was, when returned to them, not worth more than $40. Wherefore they prayed judgment for the sum of $160,-the difference between the value of the property at the time delivered to appellant and at the time he returned it to appellees. They also asked judgment on the rental contract for $20. The appellant, after a general denial, alleged that, if any injury was done to the property, it was done by the negligence and carelessness of appellees in causing and permitting it to be transferred from Meridian to Iredell without sufficiently packing and crating it. It was not alleged that appellees agreed with the appellant to properly prepare the apparatus for transportation, or to pack or crate it. In the absence of such allegation, they were only required to show that they delivered it in good condition to appellant. This they proved. It was then appellant's duty to use at least ordinary care in transporting the property, and if such care required packing and crating the apparatus, such requirement was upon appellant. Therefore, he could not have been injured by the statement of the witness Tandy "that, in his judgment, the apparatus was properly prepared for transportation." In view of the pleadings, the testimony was rather to appellant's advantage. The measure of damages was the difference between the value of the

property in the condition it was when returned, and what its value would have been at that time, had it been returned uninjured, and what appellant agreed to pay for its use, with interest at 6 per cent. from the time it should have been returned. Appellees were