266 (Tex.Civ.App.) Where question of as- must be set aside.-Smith v. Hoffman, 201 S. sumed risk was submitted by a special charge, E. 204. fact that a paragraph of general charge requir-336 (Tex.Civ.App.) Where jury in action ed jury to find for plaintiff, unless they should under federal Employers' Liability Act found find for defendant upon some other paragraph lump sum verdict for the administratrix, its of that charge, does not necessitate a reversal, apportionment of damages among her and five although it is preferable practice to incorporate children, if error, is surplusage.-Gulf, C. & S. such special charges within the general one. F. Ry. Co. v. Carpenter, 201 S. W. 270. Southern Pac. Co. v. Stephens, 201 S. W. 1076.337 (Ky.) Though instructions may be er267(4) (Ky.) A conventional contributory roneous, jury are bound, and verdict found connegligence instruction substituted for defendant trary to instructions, though erroneous, will be employer's requested instruction that plaintiff set aside.-Borderland Coal Co. v. Miller, 201 could not recover if his own negligence contrib- S. W. 299. uted to his injury, etc., held sufficiently concrete.-Bates & Rogers Const. Co. v. Fluharity's Guardian, 201 S. W. 10. (G) Construction and Operation. 295(1) (Ky.) It is duty of jury to consider all instructions together.-Borderland Coal Co. v. Miller, 201 S. W. 299. (B) Special Interrogatories and Findings. 350(1) (Tex.Civ.App.) The rule in cases submitted by a general charge that each group of facts pleaded and supported by testimony should be affirmatively submitted does not apply when the case is submitted upon special is296(1) (Ky.) In action by owner of sawmill sues.-San Antonio, U. & G. R. Co. v. Dawson, against tie company for breach of contract, in- 201 S. W. 247. action for struction held prejudicial to defendant notwith-350 (4) (Tex. Civ. App.) In standing another correct instruction.-Ayer & Lord Tie Co. v. Teel, 201 S. W. 466. breach of contract of employment, where defendants did not plead as mitigation earnings 296(2) (Mo.App.) Where attachment debtor by employé after termination of contract, it is secured instruction requiring creditor to estab-improper to submit that special issue to jury. -Mindes Millinery Co. v. Wellborn, 201 S. W. lish intention of both husband and wife to leave 1059. the state, the error was not cured by giving subsequent instructions, requested by the cred-350(6) (Tex.Civ.App.) Where defendant initor, which were correct.-Ware v. Flory, 201 troduced testimony that plaintiff worked intermittently for it and an independent construction contractor, special issue as to whether at 296(3) (Mo.App.) Instruction that carrier the time he was injured he was engaged in doowed passenger duty to exercise highest prac-ing any service for defendant held material. ticable degree of care did not authorize recov- San Antonio, U. & G. R. Co. v. Dawson, 201 ery for any negligence, though not alleged in S. W. 247. the petition, where further instructions restricted recovery to the negligence alleged. Shafer v. Kansas City Rys. Co., 201 S. W. S. W. 593. 611. 296 (4, 5) (Tex.Civ.App.) Error, if any, in failing to submit in main charge issue of contributory negligence was cured by the giving of two requested instructions on such issue. Gulf, C. & S. F. Ry. Co. v. Carpenter, 201 S. W. 270. 296 (8) (Ky.) In action for injuries by coal mine servant, instruction held not peremptory direction of verdict for coal company, when considered with all the instructions given.-Borderland Coal Co. v. Miller, 201 S. W. 299. 296 (9) (Mo.) Fatal defect in instruction directing verdict for plaintiff if certain facts existed, but leaving out most of essentials of liability, could not be cured by other instruction.-Delfosse v. United Rys. Co. of St. Louis, 201 S. W. 860. In railway conductor's action for injuries in which defendant denied that plaintiff was working for it, special issue as to whether he was in defendant's employ when injured held proper.-Id. A special issue as to whether plaintiff at the time he was injured was engaged in the discharge of his duties as defendant's employé was not objectionable as submitting a question of law. Id. Special issue as to whether box car which plaintiff was boarding when injured belonged to defendant at the time held to submit a question of fact, within Vernon's Sayles' Ann. Civ. St. 1914, art. 1985.-Id. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 1985, special issue as to who gave plaintiff instructions to do work at which he was inof fact of employment held properly refused. jured and issues requiring finding of evidence -Id. 350(8) (Tex.Civ.App.) Under Vernon's VIII. CUSTODY, CONDUCT, AND DE- Sayles' Ann. Civ. St. 1914, art. 1985, undisLIBERATIONS OF JURY. 312(1) (Tex.Civ.App.) In suit to set aside a deed, it was not erroneous for the court to inform the jury after retirement of the legal results of their answers to issues submitted.Faville v. Robinson, 201 S. W. 1061. IX. VERDICT. (A) General Verdict. puted facts should not be submitted in special issues. San Antonio, U. & G. R. Co. v. Dawson, 201 S. W. 247. court sub351 (5) (Tex.Civ.App.) Where mitted special issue as to whether plaintiff when injured was in defendant's employ, refusal of issue as to whether he was in the employ of an independent contractor held proper.-San Antonio, U. & G. R. Co. v. Dawson, 201 S. W. 247. Refusal of special issue as to whether box car belonged to independent contractor at time of injury held proper, where court submitted an issue as to whether it belonged to defendant. 329 (Tex. Civ.App.) Where there was really but one issue, which party was right as to the terms of the contract, and each could not have verdict, a finding for defendant was effective as disposing of issue against plaintiff, though-Id. issue was submitted in a double form.-Reed v. 352 (5) (Tex.Civ.App.) Special issue as to Hunter, 201 S. W. 207. whether box car at time of accident was being 333 (Tex.Civ.App.) Where plaintiff was en- moved by defendant in the operation of its titled to judgment for $294.74, the difference railroad or in work incidental to such operabetween contract and market prices of cotton tion, held not objectionable as submitting two on date defendant breached delivery, or noth-issues in one.-San Antonio, U. & G. R. Co. v. ing, a verdict for plaintiff for $50, presumably Dawson, 201 S. W. 247. based upon a compromise offer before suit, is Special issue held not misleading, as assuming not responsive to either issues or evidence, and its ownership of a car and that plaintiff was Trial 201 SOUTHWESTERN REPORTER in its employ, in connection with preceding issues.-Id. X. TRIAL BY COURT. (B) Findings of Fact and Conclusions of Law. 395(9) (Mo.) The finding of the court as to an immaterial fact does not invalidate the findings, provided the other facts found are sufficient to support the judgment.-George C. Prendergast Const. Co. v. Goldsmith, 201 S. W. 354. 396(6) (Mo.) Where answer alleged city's improper motives, finding of court that there were no such motives, fraud, or oppression, was directly responsive, and not immaterial. George C. Prendergast Const. Co. v. Goldsmith, 201 S. W. 354. express to make 397 (6) (Mo.) Failure finding on a proposition as to which defendants have the burden of proof must be regarded as a finding against them thereon.-George C. Prendergast Const. Co. v. Goldsmith, 201 S. W. 354. (A) Right of Action and Defenses. must in conversion 16 (Ark.) Plaintiff show title in the property, and a landlord lien is not enough.-Security Bank & Trust Co. v. Bond, 201 S. W. 820. (B) Jurisdiction, Parties, Preliminary an action for 32 (2) (Tex.Civ.App.) In conversion of a note, an allegation of its face value is a sufficient allegation of its value. Farmers' State Guaranty Bank v. Pierson, 201 S. W. 424. (C) Evidence. (C) Constructive Trusts. IV. MANAGEMENT AND DISPOSAL 189 (Tex.Civ.App.) Trustees cannot sell the thority conferred upon them by the instrutrust estate without the express or implied aument creating the trust.-Crawford v. El Paso Land Improvement Co., 201 S. W. 233. 191(1) (Tex.Civ.App.) No particular form of words is necessary to create a power of the intent to create the power appear.-Crawsale in the trustee, but it is essential only that ford v. El Paso Land Improvement Co., 201 S. W. 233. 191(2) (Tex.Civ.App.) Deed granting lands to plaintiff as trustee, the habendum clause of signs, and granting other rights to the trustee which was to the trustee, his successors, or asand those for whom he holds title, "and his or their assigns," created a power in the trustee to sell.-Crawford v. El Paso Land Improvement Co., 201 S. W. 233. 193 (Tex. Civ.App.) If a trustee is empowered by the instrument creating the trust to sell the estate, he may be compelled to specifically perform.-Crawford v. El Paso Land Improvement Co., 201 S. W. 233. VII. ESTABLISHMENT AND EN- (A) Rights of Cestui Que Trust as against 347 (Tenn.) That lease assigned by one who sold business and good will prohibited astained by seller contained similar provision, signment without assent, and renewal lease obheld not to prevent constructive trust against not enforce lease seller, though he could against landlord.-Fine v. Lawless, 201 S. W. 160. (C) Actions. 39 (Tex. Civ.App.) In action for conversion of note, contract under which it could have been State exchanged for equity in land held relevant, and admissible.-Farmers' material, 362 (Tenn.) Seller of business who assignGuaranty Bank v. Pierson, 201 S. W. 424. 40(6) (Tex. Civ.App.) Finding that plained lease and conveyed good will cannot avoid on ground that landlord refused to lease premtiffs could have realized face value of note con- constructive trust, on obtaining renewal lease, ises to or for benefit of buyer.-Fine v. Lawverted by defendant, held not contrary to the less, 201 S. W. 160. evidence. Farmers' State Guaranty Bank v. Pierson, 201 S. W. 424. (D) Damages. 50 (Tex.Civ.App.) The measure of damages for the conversion of a negotiable note is the amount prima facie due on the face of the note. Farmers' State Guaranty Bank v. Pierson, 201 S. W. 424. I. CREATION, EXISTENCE, AND VA LIDITY. (A) Express Trusts. See Negligence, 39. UNDUE INFLUENCE. See Deeds, 211; Wills, 155. UNION DEPOT. 44 (1) (Tex.Civ.App.) Proof of an express 44 (2) (Tex.Civ.App.) Evidence held not to (B) Resulting Trusts. 89 (5) (Mo.) In an action seeking to hold plaintiff's attorney employed to foreclose a deed of trust as trustee on his obtaining title thereto in his own name, evidence held not sufficient to sustain plaintiff's burden of proof. -Thorn v. Poynor, 201 S. W. 850. UNITED STATES. See Courts, 264. I. GOVERNMENT AND OFFICERS. 50 (Tenn.) Private contractor, building dam stream under direction and according to speci to be deeded to the United States in navigable fications of the United States, is liable only to the same extent as the government, which is tenant at will of one who has been compensatnot liable for the consequential damages to a ed for land taken, by alternative overflow and, notes did not render chattel mortgage for $2,recession of water, causing stagnation and 400 usurious.-Huber Mfg. Co. v. Ellis, 201 breeding mosquitoes which infected plaintiff S. W. 931. and his family with malaria.-Chattanooga & Tennessee River Power Co. v. Lawson, 201 S. W. 165. Private contractor, building dam to be deeded to the United States in navigable stream under direction and according to specifications of the United States, is liable only to the same extent as the government, which is not liable for the tort of failing to remove obstructions and rubbish after each overflow, since the United States is not liable for torts.-Id. 88 (Ark.) If contract was usurious in its inception, no subsequent offer to remit usury can give it validity.-Habach v. Johnson, 201 S. W. 286. Although debtor testified that it was his purpose to pay debt, less usury, such purpose cannot be given effect by rendering judgment for sum due, less usury; debtor's statement being purely voluntary and without consideration.-Id. (B) Rights and Remedies of Parties. That a private contractor building dam to be deeded to the United States in navigable117 (Ark.) Evidence held to warrant findstream under direction and according to specifications of the United States retained an interest in the surplus water for power production did not render it liable for merely consequential damages to residents of the vicinity by reason of creation of unhealthful and malarial conditions.-Id. II. PROPERTY, CONTRACTS, AND LIABILITIES. 67 (2) (Tenn.) Under agreement of private contractor building dam to be deeded to the United States in navigable stream under direction and according to specifications of the United States, to save the United States harmless on account of any damage, the contractor was liable only to the same extent as the United States.-Chattanooga & Tennessee River Power Co. v. Lawson, 201 S. W. 165. ing that agreement to pay commission to one who had nothing to do with negotiating loan was a subterfuge adopted for purpose of giving color to transaction which would otherwise have been usurious on its face.-Habach v. Johnson, 201 S. W. 286. (C) Rights and Remedies of Third Per sons. 127 (Mo.App.) The holder of a third trust deed could not invoke the plea of usury against one who sought subrogation to the rights of the first trust deed holder, having paid the amounts due under such trust deed, and retained a commission, since he was a stranger.— State Sav. Trust Co. v. Spencer, 201 S. W. 967. VACATION. VACCINATION. 78 (Tenn.) Where a dam was erected for See Judgment, 341-401. the United States in navigable stream, and alternate overflow and recession caused a stagnant pool on land of private owner, the United States was not liable for failure to drain the pool, since it had no right to go upon private land for such_purposes.-Chattanooga & Tennessee River Power Co. v. Lawson, 201 S. W. 165. See Constitutional Law, 274; Schools and VAGRANCY. See Criminal Law, 814. I. REQUISITES AND VALIDITY OF Where one takes and occupies land of another as trespasser, law does not imply agreement on his part to pay for use and occupation.-36(1) (Tex.Civ.App.) Assertion that land Id. was best in county and was bargain at certain price and could be sold was mere opinion.Binder v. Millikin, 201 S. W. 239. 43 (2) (Tex.Civ.App.) Where purchaser was in possession and could have known of falsity of all representations, but made no claim for damages or to rescission for more than five years, he waived any claim arising from misrepresentations.-Binder v. Millikin, 201 S. W. 239. II. CONSTRUCTION AND_OPERATION 46 (Tex.Civ.App.) In construing contract for sale of land, court must look to all parts of instrument and surrounding circumstances to ascertain intention of parties in making use of particular words and phrases and in making contract as whole.-Bailey v. Burkitt 201 S. W. 725. 65 (Tex.Civ.App.) A contract to convey a records for prior instruments affecting the title. hotel plainly means to convey the land upon-Kobbe v. Harriman Land Co., 201 S. W. 762. which the hotel is situated.-Crawford v. El 231 (4) (Tenn.) As in proceeding in which Paso Land Improvement Co., 201 S. W. 233. land in question was attached and sold as 78 (Mo.App.) Time is not of the essence property of K. only such title as was possessed of a contract of sale, and it is sufficient if ven- by him could be passed by decree, notice from dor suing for a balance due shows title re-recording of such decree would be ineffectual quired by the contract at time of trial, and as to parties claiming under deed superior to hence it is immaterial that deeds and evidences K.'s.-Kobbe v. Harriman Land Co., 201 S. W. of title not previously submitted are exhibited. 762. -Hobson v. Lenox, 201 S. W. 964. 231(9) (Tenn.) Registration of deed in M. county at time when land conveyed was no longer a part of such county was wholly ineffective to give notice.-Kobbe v. Harriman Land Co., 201 S. W. 762. Immediate purchaser from one having deed containing clause excluding older and better titles would not be bound to search records of M. county after land embraced by deed had been transferred by Legislature to a new county.-Id. 79 (Tex.Civ.App.) Contract for sale or lease, whereby seller promised he would make deed only on buyer's making specified payments, which in fact were never made, was not "deed of conveyance," and conditional obligations of buyer to pay sums mentioned were not "vendor's lien notes" within Vernon's Sayles' Ann. Civ. St. 1914, art. 5694, barring action to recover realty in certain cases in four years.-Bailey v. Burkitt, 201 S. W. 725. Contract for sale or lease of land held not to 231 (10) (Tenn.) Recording a deed after require that vendor give buyer notice in writing land has been conveyed by registered deed to as prerequisite to his right to declare contract a bona fide purchaser is without efficacy.null and void for buyer's failure to perform. Kobbe v. Harriman Land Co., 201 S. W. 762. -Id. (B) Conveyance. 231(11) (Tenn.) In all cases subject to the registration laws, the deed first registered has priority over constructive notice of lis pendens.-Hammock v. Qualls, 201 S. W. 517. 232 (8) (Tex.Civ.App.) Plaintiff taking a deed from vendor's executor to land of which defendants had visible and continuous possession for more than 30 years was put on notice as to defendant's interest therein, and was not a bona fide purchaser, although defendant's deed from such deceased vendor was not recorded. Boedefeld v. Johnson, 201 S. W. 1027. 232(10) (Tex.Civ.App.) Although the possession by a tenant in common is consistent 158 (Tenn.) Where title is defective, deliv- with the recorded title, that does not relieve a ery of warranty deed to one who has gone into purchaser from the duty to inquire from the possession on representation of good title under possessor the nature of his claim and possescontract providing for "apt and proper deed sion.-Boedefeld v. Johnson, 201 S. W. 1027. with covenants of general warranty" does not 233 (Tenn.) An unregistered deed, though render the contract executed, so as to prevent good between immediate parties, is incomplete rescission of contract.-Cross v. Buskirk-Rut-in law, and incapable of conveying title as ledge Lumber Co., 201 S. W. 141. have had actual notice.-Kobbe v. Harriman against subsequent purchasers not shown to Land Co., 201 S. W. 762. Under contract for warranty deed, delivery of warranty deed where title of grantor depends on parol evidence of adverse possession is not sufficient to render contract executed, in ab-238 (Tenn.) That defendant's predecessor in title was an attorney for G., common source, sence of waiver.-Id. would not prevent him from lawfully acquiring title of grantee having prior registered deed, even though he had knowledge of unrecorded deed from G.-Kobbe v. Harriman Land Co., 201 S. W. 762. (C) Quantity of Land and Appurtenances. V. RIGHTS AND LIABILITIES OF (C) Bona Fide Purchasers. negligence in 239 (3) (Tenn.) Ordinary procuring a sheriff's deed, unexplained, should defeat the title of the execution purchaser as against one who buys in good faith and without notice of the title claimed by the execution purchaser.-Hammock v. Qualls, 201 S. W. 517. Where the purchaser at a sale under condemnation by the circuit court after levy of a justice's judgment delayed getting a sheriff's deed for over eight years, a subsequent purchaser without notice who recorded his deed had superior title, though the purchaser finally took a deed, such deed not relating back to the levy.-Id. 230(2) (Tenn.) Under Shan. Code, §§ 37493752, purchaser, claiming under deed excluding older and better titles, would not be oner-242 (Tenn.) Purchaser under deed conated with duty of making inquiry or investigation for prior conveyances outside of and beyond registration books, in absence of actual notice.-Kobbe v. Harriman Land Co., 201 S. W. 762. In absence of actual notice or notice by record or registration books or by actual adverse occupation of land, purchaser, notwithstanding clause in a deed in his chain of title excluding older and better titles, has right to rest in security.-Id. taining exclusion clause is conclusively presumed to know whatever could have been discovered from public records or from investigation for adverse possessions.-Kobbe v. Harriman Land Co., 201 S. W. 762. Burden of showing that purchaser under deed containing exclusion clause had actual notice of prior unrecorded deed was on party asserting such fact.-Id. 231(2) (Tenn.) It is duty of one who purchases under deed containing clause excluding older and better titles to search public See Jury, ~70. VENIRE. See Corporations, 666; Criminal Law, See Guardian and Ward. II. DOMICILE OR RESIDENCE OF 22 (1) (Tex. Civ.App.) Under Rev. St. 1911, WAREHOUSEMEN. See Carriers, 404. WARNING. 154. arts. 1830, 4653, where individual was properly To servants, see Master and Servant, 150, WARRANT. that suit was properly instituted in county of See Searches and Seizures. individual's residence instead of that of com- WARRANTY. WATERMELONS. 32 (2) (Tex.Civ.App.) Where a plea of See Sales, 255-288. Where, after plea of privilege was filed, the III. CHANGE OF VENUE OR PLACE 75 (Tex.Civ.App.) In view of Vernon's 80 (Mo.App.) In suit in Barry county for In suit against directors of school district for WATERS AND WATER COURSES. See Drains; Levees; Navigable Waters; WAYS. See Easements; Highways. See Dower. WIDOWS. WILLS. See Courts, 202; Descent and Distribution; I. NATURE AND EXTENT OF TESTA. 6 (Mo.) Half interest in lands held by hus- 72. II. TESTAMENTARY CAPACITY. 47 (Ky.) Mere age and physical infirmity 50 (Ky.) Testamentary capacity is suffi- 11(3) (Ky.) Ky. St. § 4828, requiring her "Nancy Wilson X Whaley," instead of testa- mark trix's correct name, Nancy Wilson Hendrix, 118 (Ky.) Under Ky. St. § 4828, where (F) Mistake, Undue Influence, and Fraud. |