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to do what the law prohibits it from doing. | subject. His testimony as to custom did not 15 Am. & Eng. Enc. Law, 1185. In view of show a title in him independent of where the another trial, we suggest that if it should law would place it by virtue of the transacbe determined that the matter complained tion between the parties; and, if his evidence of is a nuisance, and that its existence is or as to custom can be construed as embracing may be affected by the stage of the water the title to the property, it was simply a in Nolan's creek, the court may render such statement of what were his legal rights by a judgment as would allow of the use of the reason of the indorsement to him of the bill sewer in emptying into the creek the refuse of lading.

of lading. But his testimony did not go to matter at a time when it may be carried off this extent; it was more in the nature of eyiand no offensive and unhealthy odors will dence concerning the method of shipment arise therefrom, and may enjoin and pro- than of title. Consequently, we do not think hibit its use at a time when the water is low appellee can justify the evidence offered relaand when such odors are likely to arise. | tive to title by custom on the ground that it Judgment reversed, and cause remanded. Re- was a rebuttal of a like issue introduced into versed and remanded.

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 claim

ed was made prior to the levy of the writ of MERCANTILE BANKING CO. V. LANDA.

attachment. Appellee joined issue on this (Court of Civil Appeals of Texas. Jan. 15, proposition, and in effect asserted that the 1896.)

bill of lading was not indorsed until after TITLE TO Goods-TRANSFER OF BILL OF LADING- the levy of the attachment. Appellee, in adEVIDENCE OF CUSTOM-PLEADING AND PROOF. dition, sought to show by evidence of custom

Where claimant alleges title to a carload that the title to the property remained in the of grain, attached as the property of the ship- shipper or consignee; and as the property per and consignee, by indorsement and transfer of the bill of lading prior to the attachment,

was shipped by Harris, and in effect consignplaintiff who joins issue, in effect asserting that | ed to him in the bill of lading issued by the the indorsement was subsequent to the levy, railway company, he was the owner.

The cannot give evidence of custom to overcome claimant's showing of title by such indorsement

issue raised by the appellant was, did it have and transfer; any evidence of custom given a title by reason of the indorsement of the by claimant having simply amounted to a state- bill of lading? And, under the case as prement of what his legal rights were by reason

sented by its pleadings, if it did not have tiof the indorsement and transfer.

tle by virtue of that fact, then the appellee Appeal froia district court, Comal county; should recover, and evidence of custom would Eugene Archer, Judge.

not aid him in this respect, and the court Trial of the right of property between should not have presented such an issue. James Landa, as plaintiff, and the Mercantile The law gives to a transfer by indorsement Banking Company, as claimant. Judgment i of a bill of lading, accompanied by a delivery for plaintiff. Claimant appeals. Reversed. of it, the effect of passing title to the property

shipped. Railway Co. v. Heidenheimer, 82 J. D. Guinn, for appellant. F. J. Maier, for

Tex. 199, 17 S. W. 608. A title thus acquired appellee.

is as effectual in law as it would be if based

upon an express and completed contract of FISHER, C. J. Appellee, Landa, sued W. sale. Evidence of custom is not admissible L. Harris for debt, and attached a car load of to vary or control an express contract. Moore oats which were shipped by Harris to ship- v. Kennedy, 81 Tex. 114, 16 S. W. 740. Nor per's order from the Indian Territory to New is usage admissible to control the legal effect Braunfels. The appellant claimed the oats of a state of facts which the law declares as owner, by reason of a transfer and delivery

creates a contract between the parties. 27 of the bill of lading before they were shipped. Am. & Eng. Enc. Law, 862, 855. A case Several rulings were made by the trial court might arise in which evidence of custom may which are here objected to. All of these rul- be admissible to ascertain in whom l'ests the ings, we find, were correct, except in the par- title of property shipped, and which is claimticulars complained of by appellant, in admit- ed under a bill of lading. But such a title ting evidence of custom to control the legal was not pleaded nor was such an issue raised effect of title that appellant claims to have by appellant. The case as presented raises acquired by reason of the transfer to him by the issue as to when the indorsement was indorsement of the bill of lading, and the de- executed. If before the levy of attachment, livery thereof, and for the further reason of then the title is in appellant, if at the time the court's submitting to the jury the issue the bill of lading was delivered to it. If raised by this evidence. Appellee replies in after the levy of the writ, then the property part to the objection, and says that the evi- was subject to the attachment, and the lien dence admitted was in rebuttal to evidence of should be foreclosed. These views dispose custom offered by appellant. We do not so of the reversible errors in the case. Judgconstrue the evidence of appellant upon that 'ment reversed, and remanded.

that necessarily inured to the benefit of the county, and the suit was as much for the use of the county as though it had been so stated in the style of the case or in the pleadings. The justice's transcripts show that the death of the principal must have been suggested, as the judgments are against the sureties only.

None of the assignments are well taken, and the judgment is affirmed.

JOHNSON et al. v. JOHNSON, County Judge.

(No. 725.) 1 (Court of Civil Appeals of Texas. Dec. 18,

1895.) ACTION ox ConvicT-LABOR BoxD-COUNTY JUDGE AS PLAINTIFF-COUNTY AS BENEFICIARY

-REMARKS OF Counsel. 1. Under Sayles' Civ. St. art. 683, providing that the person in whose name a county contract is made may sue for the county, a county judge to whom county convict-labor bonds run may sue thereon in his own name.

2. Since an action by a county judge on a county convict-labor bond running in his name is necessarily for the benefit of the county, it was not error to allow counsel to state on the trial that the suit was in behalf of the county.

3. Where an action on county convict-labor bonds was begun in the justice's court, and the transcript of the justice, by showing judgment against sureties only, shows that the death of the principal must have been suggested in such court, it was not error on appeal to the county court to allow counsel to state that the principal was dead.

Appeal from Tarrant county court; Robert G. Johnson, Judge.

Action by R. G. Johnson, as county judge, against Jake Johnson, and separate actions by the same plaintiff against others. Plaintiff had judgment in each case, and the defendants appeal. Affirmed.

W. Gregg, for appellants.

JOHNSON et al. v. JOHNSON, County Judge.

(No. 726.) 1 (Court of Civil Appeals of Texas. Dec. 18,

1895.) Appeal from Tarrant county court; Robert G. Johnson, Judge.

Action by Robert G. Johnson, as county judge, against Jake Johnson, on a county convict-labor bond, and separate actions by the same plaintiff against others on similar bonds. The actions were consolidated, and judgment rendered for plaintiff. Defendants appeal. Affirmed.

W. Gregg, for appellants.

NEILL, J. This suit, with the points involved, is in every respect like No. 725, of the same style, just decided (ubi supra); and the judgment of the county court is, upon the authority of the opinion in the case referred to, affirmed.

FLY, J. The county judge of Tarrant county brought six suits in the justice's court on as many different convict-labor bonds on which Jake Johnson and G. H. Day were sureties for Luke Short, a county convict. Judgments were obtained by the county judge in each case. The cases were appealed to the county court, where, on motion of appellants, they were consolidated, and a trial resulted in a judgment for appellee.

The suits were brought in the justice's court in the name of the county judge, and in the first assignment it is complained that it was error to permit the county attorney to state in the county court that the suits had been brought for the use and benefit of the county, because the transcript from the justice's court did not show any memoranda of oral pleadings in that court. There is no merit in this assignment, nor in the second assignment, which objects to the statement made in the county court that the principal on the bonds was dead. The transcripts from the justice's court show fully what the cause of action was, and the statements made in county court did not change it in any manner. The bonds were made payable to the county judge, and he had the authority to bring the suits in his own name for the use of the county. Sayles' Civ. St. art. 6-3.2

The suits in the justice's court were brought in the name of the county judge on a bond

JOHNSON et al. v. JOHNSON, County Judge.

(No. 728.) 1 (Court of Civil Appeals of Texas. Dec. 18,

1895.) Appeal from Tarrant county court; Robert G. Johnson, Judge.

Suit by Á. G. Johnson against Jake Johnson and others on a convict bond. From a judgment for plaintiff, defendants appeal. Affirmed.

W. Gregg, for appellants.

FLY, J. Suit on convict bond by cou judge. The same case is presented as in case of same style, No. 725, this day decided by us (ubi supra). All the points necessary to be discussed are disposed of in that case. The judgment is affirmed.

SHORT v. SHORT et al. (Court of Civil Appeals of Texas. Dec. 21,

1895.) HUSBAND AND WIFE-COMMUNITY PROPERTY-Es

TOPPEL IX Pais--PLEADING. 1. Land purchased by the husband during the lifetiine of his wife, and paid for out of community property, becomes community property.

2. An estoppelin pais, to be available, should be pleaded.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Action by J. E. Short and another against N. M. Short. There was a judgment in fu

i Rehearing denied.

2 The statute provides that actions on county contracts may be brought by the person in whose name they run.

1 Rehearing denied.

vor of plaintiffs, and defendant appeals. Re- the 640 acres by a deed to J. R. Short, appelversed.

lee, on May 10, 1867, and his wife, Amie Lee R. Stroud, for appellant. J. S. Woods.

Short, did not die until July 7, 1867. A for appellees.

community horse named Tom Baker, bought

early in 1866, paid for the land. The court LIGHTFOOT, C. J. The following state- found that the separate funds of the husment in appellant's brief is concurred in by band, J. R. Short, paid for this 128 acres. appellees, and is adopted: “Appellees, J. E. There is no testimony in the record to susShort and J. R. Short, brought this suit for tain this conclusion. The facts clearly show title and partition of 162 acres of land on that this tract was bought by J. R. Short October 17, 1892, against the appellant. The during the lifetime of the wife, was paid for land is a part of the Woods and Connor sur- out of community property, and the deed veys. Appellant answered not guilty, and executed during the existence of the marital further answered that plaintiffs' petition relation, and hence the land was community misdescribed the land as 162 acres, when in property. fact the lands owned in common by the par- 2. The next assignment of error presented ties was 304 acres; that is, 640 acres less by appellant is as follows: "The court erred 128 acres long since set off to the McKinney in finding (as shown in fifth conclusion of heirs, and less 30 acres set off to Mrs. Ten- fact) that J. R. Short, when he sold to J. E. nessee Thomas, and less 17842 acres ad- Short, was entitled to 320 acres out of said vanced to plaintiff J. E. Short, and sold by 610 acres, because said J. R. Short only achim to the Rhea brothers, as so much re- quired 64 acres from Drury Overby, considceived on his share, on or about February 24, ering it not his separate property, and could 1891. Defendant's answer contains a plat have only acquired one-half of the E. Hobof the 640 acres, showing the 128, 30, and the son interest (that is, 64 acres), and one-half 17812 acres, which tracts are eliminated, of Mrs. Thomas Short's interest (that is, 64 leaving only 304 acres to be partitioned. De- acres), by the law of descent and distribufendant alleged that the 17842 acres was tion, which, at most, aggregates only 192 conveyed to the Rheas with the understand- acres, and not 320 acres, in J. R. Short, as ing, both actual and implied by law, that it found by the court.” The original patentee should be computed as so much received by of the land died, leaving five heirs; one of J. E. Short on his share in the land. This them being Amie Short, wife of J. R. Short. answer contains a plat and field notes of all The latter purchased the interests of three the tracts here mentioned. Plaintiffs, by of the heirs, to wit, the interests of Elizasupplemental petition, replied to this answer, beth Hobson, Thomas Short, and Drury and pleaded not guilty. There was no jury. Overby. The facts, as contained in the recThe court found that defendant, N. M. Short, ord, show that each of these purchases was should take nothing out of the 142 acres set made during the lifetime of the wife, Amie out in his amended answer, and further Short, and the lands paid for during her lifefound that plaintiff J. E. Short should re- time. There is no testimony indicating that cover 26 acres, and plaintiff J. R. Short 14 either tract was paid for out of the separate acres; making 40 acres out of the 162-acre funds of J. R. Short. The facts that the tract originally sued for, as described in deed from the heirs of Thomas Short was plaintiffs' original petition. Judginent was executed December 7, 1869, and that the rendered against defendant for the 26 and deed from Drury Overby was executed De14 acres, to come out of the 162 acres. De- cember 28, 1869 (both being after the death fendant appeals.

of the wife, Amie Short), are circumstances 1. The second assignment of error is as which, unexplained, might lead to the prefollows: "The court erred in finding that J. sumption that these purchases were made R. Short, the father of his coplaintiff and of after the death of the wife.

But presumpdefendant paid for a one-fifth interest in the tions are indulged in the absence of facts, 040 acres (called the 'Elizabeth Hobson In- and not against the facts. It was clearly terest) out of his (J. R. Short's) own sepa- shown, by testimony which was not disputrate funds (as shown in clause 4 of conclu- ed, that both purchases were made, and the sions of fact), because the deed from said land paid for, during the lifetime of the Elizabeth Hobson bears date prior to the wife, and there was no testimony indicating death of J. R. Short's wife, Amie Short, and that such payments were made out of sepabecause plaintiffs J. R. Short and J. E. Short, rate funds of J. R. Short. On the contrary, and others, admitted and testified, against J. R. Short himself testified that the purtheir own interests, that it was not his own chase was made and the deed executed by funds which paid for the same, but that it Drury Overby during the lifetime of his was a community horse named Tom Baker wife, and it was shown that the first deed, which paid for this Hobson interest, and this not being recorded, was lost. Tlie land was fact is not in any manner controverted." paid for in cash. It also appears that the This assignment is well taken. It appears

It appears purchase from the Thomas Short heirs was from the statement of facts that Elizabeth made during the lifetime of the wife, the Hobson, one of the five heirs of patentee, payment being made in a buggy and harness, conveyed her one-fifth interest (128) out of the deed executed, and that this deed was lost, and the deed of 1869 executed in its more land than he owned in the survey in stead. The court below, in its fifth conclu- his own separate right. No questions are sion of fact, finds "that plaintiff J. R. Short presented to us, or found in the conclusions was entitled to 320 acres of land on said two of the court below, showing a right to consurveys, and the heirs to 192 acres.” The vey as survivor of the community. If the aggregate amount of land stated in this find- parties, under a mutual mistake of their ing (512 acres) represents the three interests rights, have each considered the deed from of 128 acres each bought by J. R. Short, and J. R. Short to J. E. Short as rightfully conthe interest already owned by the wife, Amie veying 320 acres of land, when in fact it Short, by inheritance, which was 128 acres. was more land than J. R. Short had a right The judgment rendered clearly shows that to convey, that question has not been fairthe court held that J. R. Short was entitled | ly presented to us. Under the record as to 320 acres as his separate property, which now presented, we must find the above asis not sustained by the facts,

signment, or that portion of it having refer3. The appellant also insists that the ence to the acquiescence of appellant in the "court erred in finding that plaintiff J. R. conveyance, to be well taken. Short sold to J. E. Short as much as 320 4. Under the sixth assignment, appellant acres (as shown in sixth clause of findings claims an equitable interest in the land of of fact), and that N. M. Short lost his inter- J. E. Short by reason of having paid a part est inherited from his mother in said 320 of the purchase money to L. S. Thorne when acres by acquiescence, because there was it was repurchased from the latter by J. E. never any partition of the land, either in Short and N. M. Short, after its sale under fact or by legal construction, and there was deed of trust. The facts under this assignnothing more than a mistaken opinion as to ment are controverted, and as the judgment the respective undivided interests of the par- must be reversed, and the case remanded for ties, tenants in common, without any divi- a new trial, we refrain from passing upon sion, and without any agreement, either ver- them. It is clear to us that the case has not bal or in writing, settling their undivided been fully developed, and that the concluinterests." The court, in its sixth conclu- sions of the learned court below are not in sion, finds that J. R. Short sold to J. E. Short harmony with the statement of facts. For 320 acres in the survey, which was surveyed the errors indicated the judgment is reoff to him and acquiesced in by N. M. Short. versed, and the cause remanded. 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.

MISSOURI, K. & T. RY. CO. OF TEXAS There is no pleading on the part of the plain

Y. GORDON. tiffs below setting up an estoppel, and the (Court of Civil Appeals of Texas. Nov. 30, facts in the record are not sufficient to es

1895.) tablish it, if properly alleged. The 640-acre VERDICT-CONFLICTING EVIDENCE-NOTICE OF Detract is in a square. Out of the south cor- FECTS_NEWLY-DISCOVERED TESTIMONY-CHARGE: ner was set apart, by agreement, 128 acres,

ON THE EVIDENCE-MISLEADING INSTRUCTION. or the one-fifth interest of Joseph McKinney,

1. A verdict sustained by sufficient, though about which there is no controversy. Out of

conflicting, evidence, should not be set aside.

2. Plaintiff was not chargeable with notice the west corner was set apart 30 acres for of latent defects in the apparatus connected Tennessee Thomas, about which there is no with a railway water tank, merely by reason of controversy. Out of the east corner was sur

having used it daily.

3. On an issue as to whether an injury to veyed 17842 acres, sold by J. E. Short to R.

plaintiff produced hernia, a witness testified P. and J. T. Rhea, February 24, 1891, which that on a certain day prior to the accident plainwas acquiesced in by appellant, with the un- tiff wore a truss. Held, that it was not error to derstanding that there was plenty left out

deny defendant's motion for a new trial on acof which he could obtain his portion; but

count of newly-discovered testimony corroborat

ing said witness as to said date. the testimony does not show that he agreed 4. A charge that a servant has the right to to the survey of the line fixing a boundary

presume that the appliances furnished him by for the 320 acres. It is true, he was pres

the master are reasonably safe was not upon

the weight of the evidence in an action for inent and assisted in running a line from the juries sustained in using defective apparatus consoutheast corner of the Thomas 30 acres to nected with a railway water tank. the northwest corner of the Rhea 1782 acres;

5. An instruction that it is not the duty

of the servant to see whether appliances furand there is a controversy among the parties

nished to him by the master are safe, unless as to whether this was intended as an agreed the defective condition of such appliances is so division line between them, or whether it

obvious that any person of ordinary prudence

would notice them when he came to use them, was run as a preliminary survey, to aid the

was not misleading where it was apparent from parties in making a division afterwards. the entire charge that the court meant to say The issues upon this question have not been that, when the unsafe condition is so obvious clearly made below, either in the pleadings

that a person of ordinary prudence would no

tice it, the servant, if he uses the appliances, or the evidence. It is manifest from the rec

assumes the risk of said condition, and cannot ord that J. R. Short conveyed to J. E. Short recover.

Appeal from district court, Grayson county. / and pulley, that when released from the en

Action by H. C. Gordon against the Missou- gine, after being used, it would go back to its ri, Kansas & Texas Railway Company of upright position. June 19, 1891, about 4 Texas for personal injuries. Plaintiff had o'clock a. m., while it was yet dark, the enjudgment, and defendant appeals. Affirmed. gine on which appellee was working stopped

at one of such stationary tanks, at Little LIGHTFOOT, C. J. The following is a River, and it became necessary for appellee correct statement of the case, and is adopt- to transfer water from such tank to the ened: H. C. Gordon instituted this suit June gine, which he did in the usual way, and 16, 1892, in the district court of Grayson when the metal spout was released from the county, Tex., against the Missouri, Kansas engine it fell on appellee and injured him. & Texas Railway Company of Texas. The The apparatus for handling such spout and action was brought to recover damages for the stationary tank to which it was attached personal injuries alleged to have been receiv- were defective and partly rotten, and had ed June 19, 1891, while plaintiff was employ- been in that condition for some weeks; and ed as a fireman upon defendant's line of rail- such defects were known to the receivers of way, by the fall of a spout of a water tank, the company, or could have been known by maintained for furnishing water for engines the use of ordinary care; and they were negat Little River, which fall and the injury to ligent in allowing the same to remain in that plaintiff were alleged to have been caused by condition. That such apparatus was frenegligence in suffering the water spout and quently used by appellee, and he used ordifastenings to become and remain in a defect- nary care in such use, but the defects were ive and dangerous condition. The petition of such a nature that they were not open alleged that plaintiff was employed at the to ordinary observation, and he did not know time by the receivers of the Missouri, Kan- of the defects. That appellee had suffered sas & Texas Railway Company, the then serious physical and mental pain by reason owner of the road; that the receivers were of his said injuries, which produced hernia discharged, and the road returned to the and spinal affections, whereby he was damcompany, increased in value by the expendi- aged to the full amount recovered below; ture of large amounts of its net earnings in and no question is made by appellant of its the hands of the receivers in betterments on lia bility for damages except as appears from the road; and that the road was afterwards the assignments of error considered below. transferred to the defendant, in pursuance 1. Appellant's first assignment of error is that of and by authority of the special act of the the court erred in overruling the motion for legislature of the state of Texas authorizing new trial on the ground that the verdict was a Texas corporation to acquire the lines of contrary to the evidence, in this: that the eyirailway within this state then owned by the dence shows no injury, or a trifling one, and Missouri, Kansas & Texas Railway Com- | that appellee did not claim to be injured until pany, approved April 16, 1891; and that by after his discharge from the company's servvirtue of said act, and the acquisition of the ice, and that the claim of injury is frauduline of railway thereunder, the Texas com- lent and fictitious. It is true there was pany became liable for plaintiff's demand. some conflict in the evidence, but there was Plaintiff's damages were laid at the sum of ample testimony to sustain the verdict, and $30,000. Defendant answered by general de the court did not err in refusing to set it nial. Upon trial of the case in the court be- aside. low, January 13, 1894, plaintiff recovered 2. The second assignment raises the quesjudgment for $5,000, from which judgment tion on the motion for new trial that the evithe company appeals.

dence showed that the defects were in the The facts proved, and the verdict and judg- machinery and apparatus handled daily by ment thereon, justify the conclusions: That plaintiff in his employment, and he was in June, 1891, appellee was a fireman in the chargeable with notice of their condition. employ of Eddy and Cross, receivers of the ap- The facts do not justify the conclusion that pellant company, upon its line of railway be- the defects were of such a nature that they tween Alvarado and Taylor. It was a part were patent, and such as could be discoverof his duty as such fireman to take wa- ed by ordinary observation, or by their use ter from the tanks along the line for the by appellee in transferring water from the use of the engine upon which he worked, stationary tank to the engine; and the undiswhich was done by getting on the back end puted evidence shows that he did not know of the engine tank and pulling the spout of of such defects. the stationary water tank down to the en- 3. The third assignment of error is based gine. There were rods and a valve at the upon the refusal of the court to grant a new back of the spout, which opens and lets the trial on account of newly-discovered evidence water into the engine tank. The spout was of the witnesses Carrigan, Young, Hayden, made of metal, was eight or nine inches in Shultz, and Leeson. The plaintiff, in his pediameter at the small end, and about one tition, set out his injuries, and claimed that foot at the large end, and was about eight he had been ruptured by reason of such inor nine feet long, being so attached to the juries received June 19, 1891. The defendstationary tank, and arranged with weights / ant's testimony was directed towards an at

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