to do what the law prohibits it from doing. 15 Am. & Eng. Enc. Law, 1185. In view of another trial, we suggest that if it should be determined that the matter complained of is a nuisance, and that its existence is or may be affected by the stage of the water in Nolan's creek, the court may render such a judgment as would allow of the use of the sewer in emptying into the creek the refuse matter at a time when it may be carried off and no offensive and unhealthy odors will arise therefrom, and may enjoin and prohibit its use at a time when the water is low and when such odors are likely to arise. Judgment reversed, and cause remanded. Reversed and remanded.

TITLE TO GOODS-TRANSFER OF BILL OF LADINGEVIDENCE OF CUSTOM-PLEADING AND PROOF.

Where claimant alleges title to a carload

subject. His testimony as to custom did not show a title in him independent of where the law would place it by virtue of the transaction between the parties; and, if his evidence as to custom can be construed as embracing the title to the property, it was simply a statement of what were his legal rights by reason of the indorsement to him of the bill of lading. But his testimony did not go to this extent; it was more in the nature of evidence concerning the method of shipment than of title. Consequently, we do not think appellee can justify the evidence offered relative to title by custom on the ground that it was a rebuttal of a like issue introduced into the case by appellant.

Appellant's title to the property was based. upon an indorsement to it of the bill of lading, and a delivery thereof, which it claimed was made prior to the levy of the writ of attachment. Appellee joined issue on this proposition, and in effect asserted that thebill of lading was not indorsed until after the levy of the attachment. Appellee, in addition, sought to show by evidence of custom that the title to the property remained in the

was shipped by Harris, and in effect consigned to him in the bill of lading issued by the railway company, he was the owner. The issue raised by the appellant was, did it have a title by reason of the indorsement of the bill of lading? And, under the case as presented by its pleadings, if it did not have title by virtue of that fact, then the appellee

Trial of the right of property between James Landa, as plaintiff, and the Mercantile Banking Company, as claimant. Judgment for plaintiff. Claimant appeals. Reversed.

J. D. Guinn, for appellant. F. J. Maier, for appellee.

FISHER, C. J. Appellee, Landa, sued W. L. Harris for debt, and attached a car load of oats which were shipped by Harris to shipper's order from the Indian Territory to New Braunfels. The appellant claimed the oats as owner, by reason of a transfer and delivery of the bill of lading before they were shipped. Several rulings were made by the trial court which are here objected to. All of these rulings, we find, were correct, except in the particulars complained of by appellant, in admitting evidence of custom to control the legal effect of title that appellant claims to have acquired by reason of the transfer to him by indorsement of the bill of lading, and the delivery thereof, and for the further reason of the court's submitting to the jury the issue raised by this evidence. Appellee replies in part to the objection, and says that the evidence admitted was in rebuttal to evidence of custom offered by appellant. We do not so construe the evidence of appellant upon that

not aid him in this respect, and the court should not have presented such an issue. The law gives to a transfer by indorsement of a bill of lading, accompanied by a delivery of it, the effect of passing title to the property shipped. Railway Co. v. Heidenheimer, 82 Tex. 199, 17 S. W. 608. A title thus acquired is as effectual in law as it would be if based upon an express and completed contract of sale. Evidence of custom is not admissible to vary or control an express contract. Moore v. Kennedy, 81 Tex. 144, 16 S. W. 740. Nor is usage admissible to control the legal effect of a state of facts which the law declares creates a contract between the parties. 27 Am. & Eng. Enc. Law, 862, 855. A case might arise in which evidence of custom may be admissible to ascertain in whom rests the title of property shipped, and which is claimed under a bill of lading. But such a title was not pleaded nor was such an issue raised by appellant. The case as presented raises the issue as to when the indorsement was executed. If before the levy of attachment, then the title is in appellant, if at the time the bill of lading was delivered to it. If after the levy of the writ, then the property was subject to the attachment, and the lien should be foreclosed. These views disposeof the reversible errors in the case. Judgment reversed, and remanded.

vor of plaintiffs, and defendant appeals. Reversed.

Lee R. Stroud, for appellant. J. S. Woods. for appellees.

LIGHTFOOT, C. J. The following statement in appellant's brief is concurred in by appellees, and is adopted: "Appellees, J. E. Short and J. R. Short, brought this suit for title and partition of 162 acres of land on October 17, 1892, against the appellant. The land is a part of the Woods and Connor surveys. Appellant answered not guilty, and further answered that plaintiffs' petition misdescribed the land as 162 acres, when in fact the lands owned in common by the parties was 304 acres; that is, 640 acres less 128 acres long since set off to the McKinney heirs, and less 30 acres set off to Mrs. Tennessee Thomas, and less 1782 acres advanced to plaintiff J. E. Short, and sold by him to the Rhea brothers, as so much received on his share, on or about February 24, 1891. Defendant's answer contains a plat of the 640 acres, showing the 128, 30, and the 1782 acres, which tracts are eliminated, leaving only 304 acres to be partitioned. Defendant alleged that the 1782 acres conveyed to the Rheas with the understanding, both actual and implied by law, that it should be computed as so much received by J. E. Short on his share in the land. This answer contains a plat and field notes of all the tracts here mentioned. Plaintiffs, by supplemental petition, replied to this answer, and pleaded not guilty. There was no jury. The court found that defendant, N. M. Short, should take nothing out of the 142 acres set out in his amended answer, and further found that plaintiff J. E. Short should recover 26 acres, and plaintiff J. R. Short 14 acres; making 40 acres out of the 162-acre tract originally sued for, as described in plaintiffs' original petition. Judgment was rendered against defendant for the 26 and 14 acres, to come out of the 162 acres. fendant appeals.

De

1. The second assignment of error is as follows: "The court erred in finding that J. R. Short, the father of his coplaintiff and of defendant paid for a one-fifth interest in the 640 acres (called the 'Elizabeth Hobson Interest') out of his (J. R. Short's) own separate funds (as shown in clause 4 of conclusions of fact), because the deed from said Elizabeth Hobson bears date prior to the death of J. R. Short's wife, Amie Short, and because plaintiffs J. R. Short and J. E. Short, and others, admitted and testified, against their own interests, that it was not his own funds which paid for the same, but that it was a community horse named Tom Baker which paid for this Hobson interest, and this fact is not in any manner controverted." This assignment is well taken. It appears from the statement of facts that Elizabeth Hobson, one of the five heirs of patentee, conveyed her one-fifth interest (128) out of

the 640 acres by a deed to J. R. Short, appellee, on May 10, 1867, and his wife, Amie Short, did not die until July 7, 1867. A community horse named Tom Baker, bought early in 1866, paid for the land. The court found that the separate funds of the husband, J. R. Short, paid for this 128 acres. There is no testimony in the record to sustain this conclusion. The facts clearly show that this tract was bought by J. R. Short during the lifetime of the wife, was paid for out of community property, and the deed executed during the existence of the marital relation, and hence the land was community property.

2. The next assignment of error presented by appellant is as follows: "The court erred in finding (as shown in fifth conclusion of fact) that J. R. Short, when he sold to J. E. Short, was entitled to 320 acres out of said 640 acres, because said J. R. Short only acquired 64 acres from Drury Overby, considering it not his separate property, and could have only acquired one-half of the E. Hobson interest (that is, 64 acres), and one-half of Mrs. Thomas Short's interest (that is, 64 acres), by the law of descent and distribution, which, at most, aggregates only 192 acres, and not 320 acres, in J. R. Short, as found by the court." The original patentee of the land died, leaving five heirs; one of them being Amie Short, wife of J. R. Short. The latter purchased the interests of three of the heirs, to wit, the interests of Elizabeth Hobson, Thomas Short, and Drury Overby. The facts, as contained in the record, show that each of these purchases was made during the lifetime of the wife, Amie Short, and the lands paid for during her lifetime. There is no testimony indicating that either tract was paid for out of the separate funds of J. R. Short. The facts that the deed from the heirs of Thomas Short was executed December 7, 1869, and that the deed from Drury Overby was executed December 28, 1869 (both being after the death of the wife, Amie Short), are circumstances which, unexplained, might lead to the presumption that these purchases were made after the death of the wife. But presumptions are indulged in the absence of facts, and not against the facts. It was clearly shown, by testimony which was not disputed, that both purchases were made, and the land paid for, during the lifetime of the wife, and there was no testimony indicating that such payments were made out of separate funds of J. R. Short. On the contrary, J. R. Short himself testified that the purchase was made and the deed executed by Drury Overby during the lifetime of his wife, and it was shown that the first deed, not being recorded, was lost. The land was paid for in cash. It also appears that the purchase from the Thomas Short heirs was made during the lifetime of the wife, the payment being made in a buggy and harness, the deed executed, and that this deed was

lost, and the deed of 1869 executed in its stead. The court below, in its fifth conclusion of fact, finds "that plaintiff J. R. Short was entitled to 320 acres of land on said two surveys, and the heirs to 192 acres." The aggregate amount of land stated in this finding (512 acres) represents the three interests of 128 acres each bought by J. R. Short, and the interest already owned by the wife, Amie Short, by inheritance, which was 128 acres. The judgment rendered clearly shows that the court held that J. R. Short was entitled to 320 acres as his separate property, which is not sustained by the facts.

3. The appellant also insists that "court erred in finding that plaintiff J. R. Short sold to J. E. Short as much as 320 acres (as shown in sixth clause of findings of fact), and that N. M. Short lost his interest inherited from his mother in said 320 acres by acquiescence, because there was never any partition of the land, either in fact or by legal construction, and there was nothing more than a mistaken opinion as to the respective undivided interests of the parties, tenants in common, without any division, and without any agreement, either verbal or in writing, settling their undivided interests." The court, in its sixth conclusion, finds that J. R. Short sold to J. E. Short 320 acres in the survey, which was surveyed off to him and acquiesced in by N. M. Short. There is no question made by appellant that J. R. Short sold to J. E. Short 320 acres, but he controverts the proposition that he acquiesced in such sale, or estopped himself from claiming all that was justly due him. There is no pleading on the part of the plaintiffs below setting up an estoppel, and the facts in the record are not sufficient to establish it, if properly alleged. The 640-acre tract is in a square. Out of the south corner was set apart, by agreement, 128 acres, or the one-fifth interest of Joseph McKinney, about which there is no controversy. Out of the west corner was set apart 30 acres for Tennessee Thomas, about which there is no controversy. Out of the east corner was surveyed 1782 acres, sold by J. E. Short to R. P. and J. T. Rhea, February 24, 1891, which was acquiesced in by appellant, with the understanding that there was plenty left out of which he could obtain his portion; but the testimony does not show that he agreed to the survey of the line fixing a boundary for the 320 acres. It is true, he was present and assisted in running a line from the southeast corner of the Thomas 30 acres to the northwest corner of the Rhea 1782 acres; and there is a controversy among the parties as to whether this was intended as an agreed division line between them, or whether it was run as a preliminary survey, to aid the parties in making a division afterwards. The issues upon this question have not been clearly made below, either in the pleadings or the evidence. It is manifest from the record that J. R. Short conveyed to J. E. Short

more land than he owned in the survey in his own separate right. No questions are presented to us, or found in the conclusions of the court below, showing a right to convey as survivor of the community. If the parties, under a mutual mistake of their rights, have each considered the deed from J. R. Short to J. E. Short as rightfully conveying 320 acres of land, when in fact it was more land than J. R. Short had a right to convey, that question has not been fairly presented to us. Under the record as now presented, we must find the above assignment, or that portion of it having reference to the acquiescence of appellant in the conveyance, to be well taken.

4. Under the sixth assignment, appellant claims an equitable interest in the land of J. E. Short by reason of having paid a part of the purchase money to L. S. Thorne when it was repurchased from the latter by J. E. Short and N. M. Short, after its sale under deed of trust. The facts under this assignment are controverted, and as the judgment must be reversed, and the case remanded for a new trial, we refrain from passing upon them. It is clear to us that the case has not been fully developed, and that the conclusions of the learned court below are not in harmony with the statement of facts. For the errors indicated the judgment is reversed, and the cause remanded.

MISSOURI, K. & T. RY. CO. OF TEXAS v. GORDON. (Court of Civil Appeals of Texas. Nov. 30, 1895.)

VERDICT-CONFLICTING EVIDENCE-NOTICE OF DEFECTS-NEWLY-DISCOVERED TESTIMONY-CHARGE: ON THE EVIDENCE-MISLEADING INSTRUCTION.

1. A verdict sustained by sufficient, though conflicting, evidence, should not be set aside.

2. Plaintiff was not chargeable with notice of latent defects in the apparatus connected with a railway water tank, merely by reason of having used it daily.

3. On an issue as to whether an injury to plaintiff produced hernia, a witness testified that on a certain day prior to the accident plaintiff wore a truss. Held, that it was not error to deny defendant's motion for a new trial on account of newly-discovered testimony corroborating said witness as to said date.

4. A charge that a servant has the right to presume that the appliances furnished him by the master are reasonably safe was not upon the weight of the evidence in an action for injuries sustained in using defective apparatus connected with a railway water tank.

5. An instruction that it is not the duty of the servant to see whether appliances furnished to him by the master are safe, unless the defective condition of such appliances is so obvious that any person of ordinary prudence would notice them when he came to use them, was not misleading where it was apparent from the entire charge that the court meant to say that, when the unsafe condition is so obvious that a person of ordinary prudence would notice it, the servant, if he uses the appliances, assumes the risk of said condition, and cannot

recover.

Appeal from district court, Grayson county. Action by H. C. Gordon against the Missouri, Kansas & Texas Railway Company of Texas for personal injuries. Plaintiff had judgment, and defendant appeals. Affirmed.

LIGHTFOOT, C. J. The following is a correct statement of the case, and is adopted: H. C. Gordon instituted this suit June 16, 1892, in the district court of Grayson county, Tex., against the Missouri, Kansas & Texas Railway Company of Texas. The action was brought to recover damages for personal injuries alleged to have been received June 19, 1891, while plaintiff was employed as a fireman upon defendant's line of railway, by the fall of a spout of a water tank, maintained for furnishing water for engines at Little River, which fall and the injury to plaintiff were alleged to have been caused by negligence in suffering the water spout and fastenings to become and remain in a defective and dangerous condition. The petition alleged that plaintiff was employed at the time by the receivers of the Missouri, Kansas & Texas Railway Company, the then owner of the road; that the receivers were discharged, and the road returned to the company, increased in value by the expenditure of large amounts of its net earnings in the hands of the receivers in betterments on the road; and that the road was afterwards transferred to the defendant, in pursuance of and by authority of the special act of the legislature of the state of Texas authorizing a Texas corporation to acquire the lines of railway within this state then owned by the Missouri, Kansas & Texas Railway Company, approved April 16, 1891; and that by virtue of said act, and the acquisition of the line of railway thereunder, the Texas company became liable for plaintiff's demand. Plaintiff's damages were laid at the sum of $30,000. Defendant answered by general denial. Upon trial of the case in the court below, January 13, 1894, plaintiff recovered judgment for $5,000, from which judgment the company appeals.

The facts proved, and the verdict and judgment thereon, justify the conclusions: That in June, 1891, appellee was a fireman in the employ of Eddy and Cross, receivers of the appellant company, upon its line of railway between Alvarado and Taylor. It was a part of his duty as such fireman to take water from the tanks along the line for the use of the engine upon which he worked, which was done by getting on the back end of the engine tank and pulling the spout of the stationary water tank down to the engine. There were rods and a valve at the back of the spout, which opens and lets the water into the engine tank. The spout was made of metal, was eight or nine inches in diameter at the small end, and about one foot at the large end, and was about eight or nine feet long, being so attached to the stationary tank, and arranged with weights

and pulley, that when released from the engine, after being used, it would go back to its upright position. June 19, 1891, about 4 o'clock a. m., while it was yet dark, the engine on which appellee was working stopped at one of such stationary tanks, at Little River, and it became necessary for appellee to transfer water from such tank to the engine, which he did in the usual way, and when the metal spout was released from the engine it fell on appellee and injured him. The apparatus for handling such spout and the stationary tank to which it was attached were defective and partly rotten, and had been in that condition for some weeks; and such defects were known to the receivers of the company, or could have been known by the use of ordinary care; and they were negligent in allowing the same to remain in that condition. That such apparatus was frequently used by appellee, and he used ordinary care in such use, but the defects were of such a nature that they were not open to ordinary observation, and he did not know of the defects. That appellee had suffered serious physical and mental pain by reason of his said injuries, which produced hernia and spinal affections, whereby he was damaged to the full amount recovered below; and no question is made by appellant of its liability for damages except as appears from the assignments of error considered below.

1. Appellant's first assignment of error is that the court erred in overruling the motion for new trial on the ground that the verdict was contrary to the evidence, in this: that the evidence shows no injury, or a trifling one, and that appellee did not claim to be injured until after his discharge from the company's service, and that the claim of injury is fraudulent and fictitious. It is true there was some conflict in the evidence, but there was ample testimony to sustain the verdict, and the court did not err in refusing to set it aside.

2. The second assignment raises the question on the motion for new trial that the evidence showed that the defects were in the machinery and apparatus handled daily by plaintiff in his employment, and he was chargeable with notice of their condition. The facts do not justify the conclusion that the defects were of such a nature that they were patent, and such as could be discovered by ordinary observation, or by their use by appellee in transferring water from the stationary tank to the engine; and the undisputed evidence shows that he did not know of such defects.

3. The third assignment of error is based upon the refusal of the court to grant a new trial on account of newly-discovered evidence of the witnesses Carrigan, Young, Hayden, Shultz, and Leeson. The plaintiff, in his petition, set out his injuries, and claimed that he had been ruptured by reason of such injuries received June 19, 1891. The defendant's testimony was directed towards an at