Perry & Woods, of Franklin, for appellant. H. S. Morehead and H. A. Bush, both of Franklin, for appellee.

KING, J. Appellee filed this suit in the justice's court of precinct No. 1, Robertson county, for alleged damages in the sum of $190, alleging that on or about the 19th day of June, A. D. 1916, she was the owner of a certain mule that was killed by the negligence of appellant's agents, servants, and employés in the operation of a locomotive engine and train near the station of New Baden in said county, the specific acts of negligence alleged being that the agents, servants, and employés of appellant in charge of said locomotive engine and train failed to ring the bell, sound the whistle, or to make, or cause to be made, any other sound or alarm to frighten said mule off the track and right of way, after said servants and employés discovered the danger to the mule, or by the use of ordinary care could have discovered same, and in failing to keep a lookout to discover the danger and peril of said mule, and in failing and refusing to give and sound the statutory signals for stations, crossings, and for stock alarm, and in running said engine and train at a dangerous and high speed; that the point and place where said mule was struck and killed was a point where appellant could have fenced his right of way and track, and had failed to do so. Appellant answered by general demurrer and general denial, and, further, that said mule was killed at a place where appellant could not, with safety to his employés and convenience to the public, fence his track, and where he was not required by law to fence said track, further setting out the reasons why he was not so required to fence the track. Appellant recovered judgment in the justice's court, and the same was appealed by appellee to the county court of Robertson county, and on the 24th day of November, 1916, at a trial before a jury, judgment was rendered against appellant in the sum of $135, in accordance with the answers of the jury to special issues submitted to them by the court. The first and only assignment of error is as follows:

was

self-serving declaration. Said objection overruled by the court, and the witness was permitted to testify as follows: 'Yes, I told you how it happened just like I told the jury. I told you the mule was standing on the track, eating grass, when I first heard the train coming.'

[1] This assignment of error must be sustained. The question was clearly leading, and was error. I. & G. N. Ry. Co. v. Dalwigh, 92 Tex. 655, 51 S. W. 500, and authorities therein cited.

[2] This question also called for a selfserving declaration on the part of plaintiff that would be an attempt to bolster up her own testimony, it being introduced by appellee after she had been cross-examined by appellant with reference to a certain statement she had made in writing to his claim agent on October 28, 1916, wherein she made a different statement as to the facts surrounding the killing of the mule than she made upon the trial of the case. This was error. Etna Ins. Co. v. Eastman, 95 Tex. 34, 64 S. W. 863; Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691; Kirby Lumber Co. V. Youngblood, 192 S. W. 1106.

For the errors pointed out, the cause is reversed and remanded.

1. APPEAL AND ERROR 719(8) ASSIGNMENT OF ERROR-PLEADINGS INSUFFICIENCY TO SUPPORT JUDGMENT.

If appellant's contention that there is no basis in the pleadings for the judgment be correct, the judgment should be reversed without formal assignment in that regard.

2. SALES 360(1)—SUIT AGAINST BUYERRECOVERY OF RENTAL VALUE.

Where mules were sold for an agreed price and no title or lien reserved, there could be no recovery against the buyer for the rental value of the mules.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Suit by T. L. Jemison against James Summergill and others. Judgment against defendant named, and he appeals. Reversed and remanded for new trial.

V. A. Collins, of Beaumont, and H. B. Tucker, of Port Arthur, for appellant. J. V. Fleming, of Beaumont, for appellee.

HIGHTOWER, C. J. Appellee, as plain

"The court erred in admitting the following testimony offered by the plaintiff over defendant's objection, to wit: Plaintiff, testifying as a witness in her own behalf, on redirect examination, was asked by her counsel the following question 'Sallie, when you came to my tiff below, filed this suit on May 31, 1915, office to employ me in this case, did you not tell me then that the mule was struck and making James Summergill, John Brown, and killed just like you have told it to the jury this Tom Brown defendants thereto, but aftermorning, and didn't you tell me then that you wards, and before trial of the case below, heard the whistle down at the culvert, and Tom Brown was dismissed from the suit, and the cause proceeded to trial against Summergill and John Brown as defendants, and upon the trial, judgment was rendered in favor of appellee against Summergill alone, who is the appellant here.

that you then looked down the track toward the station, and saw your mule standing on the track?' to which said question defendant objected: (a) Because it was leading; and (b) because it called for a self-serving declaration on the part of the plaintiff that would be an attempt to bolster up her own testimony by such

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It was substantially alleged in appellee's original petition that his father, W. J. Jemison, on April 24, 1915, sold to the defendants named a span of mules, and that at the time of such sale, the defendants promised to pay appellee's said father $50 in cash and $350 in addition, just as soon as a settlement between the parties relative to some other business matters between them could be had; that the $50 cash payment was to be put up as earnest money to bind the trade until said settlement could be made, but that as a matter of fact only $5 in cash was put up at the time, that amount being all that defendants had at the time of making the contract, but that defendants agreed to put up $45 in cash the very next day; that the settlement between appellee's father, W. J. Jemison, and the named defendants relative to the other business transaction between the parties was had and made, but that defendants had never paid the purchase price of said mules, either to appellee's father, W. J. Jemison, or to appellee himself, with the exception of the $5 cash payment. Appellee further alleged that subsequent to the contract between his father and defendants for the sale and purchase of the mules, and on or about April 26, 1915, appellee purchased from his father the account owed his father by said defendants, and that by reason of his purchase of such account against defendants, appellee became the legal owner and holder of same, and was entitled to collect the same; that in consequence of the default on the part of defendants in making payment of the purchase price of said mules, defendants had forfeited all right to the mules, and that appellee was entitled to the possession of said mules, or, in lieu thereof, the price which defendants had agreed and bound themselves to pay for said mules, which was the sum of $400. There is a fur-ment proceeds as follows: ther allegation in the petition to the effect that said defendants had had possession of the span of mules since April 24, 1915, and that appellee had been deprived of the use and benefit of said mules since that time; and the further allegation that appellee depended upon said mules for a livelihood, and that they were worth $5 per day to him, and that he could have and would have made $5 per day by the use of said mules during all the time that defendants had possession of them, had their possession been held by appellee; that defendants, though often requested, had failed to pay the purchase price of said mules, and had also failed and refused to release said span of mules, to appellee's damage in the sum of $400, as the purchase price of said mules, and $5 per day .since April 24, 1915. The prayer was:

said mules; that he be allowed the sum of $25 for attorney's fees, herein expended, which for such other and further relief, special and is just and reasonable, for costs of this suit, and general, in law and in equity, that he may be justly entitled to, etc., and in duty bound will ever pray."

Each of the defendants answered by special answer, and each interposed a general demurrer and certain special exceptions, and a general denial, and some of them other pleas which are unnecessary to more specifically mention here, for the reason that the same are entirely immaterial to the disposition of this appeal. The case was tried with a jury, and, when the evidence was concluded, the record discloses that it was agreed that the trial court (county court of Jefferson county) need not deliver any charge to the jury, either written or verbal, and after argument by counsel for both sides, the jury returned a verdict in favor of appellee against appellant, Jas. Summergill, for $395, which the verdict stated was the value of the mules, and also for $612, which the verdict stated was the rental value of the mules at the rate of $1 per working day from May 24, 1915, to the date of trial; upon which verdict the trial court entered judgment in favor of appellee against appellant, Summergill, for $1,007, with interest thereon from the date of the trial at the rate of 6 per cent. per annum. The jury having expressly found that appellee should take nothing as against defendant John Brown, as to him judgment was entered accordingly.

"That he have judgment against the said defendants, and each of them, for the sum of $400, or, in lieu thereof, the possession of the said one span of mules; that he be allowed $5 a day since the 24th day of April, A. D. 1915, as damages sustained by reason of the fact that

It appears from the record that there was also filed by appellee, at the time the trial commenced below, what is termed "Plaintiff's First Trial Amendment." In this instrument it is alleged that the plaintiff dismisses his causé of action as to the defendant Tom Brown, and thereafter this instru

original pleading was sold by the party men"That the team of mules referred to in said tioned therein to James Summergill, and that after said money was not put up as a forfeit as agreed on, that the plaintiff repossessed himself of the mules, as he had a right to do, forbade the defendants from taking said mules; but that, notwithstanding the same, the defendants Summergill and Brown unlawfully seized and possessed themselves of said mules, and thereby deprived the plaintiff of said team, and by their withholding the same, notwithstanding demand therefor has been made, have damaged the plaintiff in the value thereof, and the rental thereof, from and since the 23d day of May, the gation therein of the date of the forfeit money year mentioned in said petition. That the allewas paid should be May, instead of April, of the year mentioned."

And the prayer was:

"Wherefore, premises considered, plaintiffs pray for judgment as in their former pleadings."

[1] There are several assignments of error found in appellant's brief, but we shall not discuss them in the order made, and, indeed, some of them could not be considered at all in the absence of a statement of facts, and

and the vital and main assignment, which challenges the verdict and judgment on the ground that there is no basis in the pleadings for same, is the only one that we shall consider; and, if this contention by appellant be correct, this court should reverse the judgment and remand the cause, without formal assignment of error in that regard.

that $5 of the contract price was paid in cash, leaving a balance of $395, which appellee alleges was never paid by defendants, either to his father or to himself, after he became the owner of this indebtedness, and the jury's verdict is to affirm, substantially, the contention of appellee that these mules were sold by his father to defendants, and that $395, the balance due on the contract of purchase, was never paid by defendants, and that appellee, being the purchaser of this indebtedness against defendants, was entitled to recover this $395; otherwise, there would be no basis whatever in the pleading for this $395, because it is nowhere alleged, either in the original petition or in what is called appellee's trial amendment, what the value of these mules was, and nothing is stated in that connection as to value, save and except the allegation that defendants promised to pay appellee's father $400 for these mules. We say that the jury's verdict confirms these allegations and theory of appellee, but in addition to awarding appellee, by their verdict, $395, the jury also awarded him $612 as the rental value of said mules, as above shown, in the verdict which we have quoted.

[2] It is apparent from the allegations in appellee's petition, as we have stated the same substantially above, that the mules in question were agreed to be sold by appellee's father to the defendants, for the price of $400; and, while it is alleged that $50 was to be paid in cash as earnest money to bind the trade, but that as a matter of fact only $5 in cash was actually paid at the time of such contract, nevertheless it appears that appellee's father delivered possession of these mules to the defendants, and that thereafter, appellee's father, for valuable consideration, sold to appellee the account or demand which the father held against the defendants, but there is no allegation whatever of fact to the effect that in the contract between appellee's father and defendants for the sale and purchase of the mules, the title to the mules was to remain in appellee's father until paid for, or even that any lien of any character was to be retained by appellee's father to secure the purchase money agreed to be paid by defendants for said mules; and there is no al-lee, and the only allegations in appellee's pelegation of fact whatever that at the time appellee's father sold him the account or debt owed the father by defendants as the purchase price of said mules, he, the father, also sold or transferred, or even attempted to sell or transfer, to appellee any title or interest of any character whatsoever in or to said mules; but appellee did assume in his petition that he became the owner of said mules themselves, or was entitled to take possession of them from the defendants upon their breach or failure to comply with their contract of purchase with appellee's father, in which assumption appellee was wrong, so far as anything disclosed by his petition is concerned.

Appellee's petition as a whole, and what is termed his "trial amendment," considered in connection with his original petition, shows clearly that his cause of action is one for the recovery of the purchase price of the span of mules, as agreed upon between his father and the defendants, which was alleged to be $400, and also for interest at the legal rate on that amount from the date of the sale and delivery of said mules by his father to defendants; and, indeed, his prayer, in substance, is that he recover this contract price, and only in the alternative that he recover the mules themselves.

Now, the question is, the jury having in effect found that the sale of the mules was made by appellee's father to defendants, for the agreed price of $400, as alleged by appel

tition being substantially that he became the owner of the indebtedness owed by defendants to his father as the purchase price of these mules, Was there anything in the pleadings to authorize the verdict and judgment in favor of appellee for the contract price of these mules, and also the additional sum of $612, as their rental value from the time they were purchased by and delivered to the defendants? We think, clearly, that the only recovery that appellee could have legally had against appellant would have been the balance of the purchase money which was due appellee for these mules, together with interest thereon at the legal rate, from the date of the sale and delivery of these mules to appellant, and therefore we hold that the trial court was in error in rendering judgment against appellant for the balance of the purchase money due for these mules, and in addition thereto, their rental value as found by the jury from the time of their sale and delivery to appellant.

What we have said is, of course, to be construed and confined to the pleadings of the parties as they now stand, and not to what issues may be properly pleaded and submitted on another trial.

The judgment of the trial court is therefore reversed, and the cause remanded for a new

Now, as stated above, the petition shows trial.

SAN ANTONIO & A. P. RY. CO. v. BOYED. to which action of the court in overruling

122(1)—OR- | trial.

(a) "The courts of this state do not take judi3. APPEAL AND ERROR 926(2)—REVIEW—cial knowledge of the ordinances of cities inPRESUMPTION. corporated under the general laws; and such ordinances must be alleged and proved as any other facts."

Appeal from District Court, Milam County; of the accident." J. C. Scott, Judge.

In our judgment, the allegation was suffiAction by Hattie Boyed individually and as cient to notify the appellant that the city ornext friend of Anthony Boyed, a minor, dinance would be offered in evidence, and it against the San Antonio & Aransas Pass Rail-was good, at least in the absence of a special way Company. Judgment for plaintiff in her exception. Appellant did not except to the representative capacity, and defendant ap- petition specially. In the trial court appelpeals. Affirmed.

[4] The third assignment of error is as follows:

Believing that the appellant has had a fair trial of the case, the same is in all things affirmed.

"The court erred in section No. 4 of its charge to the jury, which section of said charge, in effect, instructs the jury that the amount of damages which plaintiff Anthony Boyed would be entitled to recover for the negligent death of his father would not depend on whether the SMITH v. THOMPSON et al. (No. 7871.) father had supported or intended to support said (Court of Civil Appeals of Texas. Dallas. Jan. plaintiff Anthony Boyed, because said plaintiff 26, 1918. Rehearing Denied Anthony Boyed would be entitled to recover Feb. 23, 1918.) for the negligent death of his father only the value of such benefits as he had a reasonable 1. APPEAL AND ERROR 1002-SCOPE-FINDexpectation of receiving from his father had he lived, and the question as to whether the father intended to support the child Anthony Boyed would very largely control the amount and value of such benefits as said Anthony Boyed could reasonably expect to receive from the father had he lived."

The entire paragraph of the court's charge referred to in the above assignment is as fol

lows:

"It is the legal duty of the father to support his children during their minority according to their station and condition in life, and if such child is, by the negligence of another, deprived of this right, he may recover the amount of damages thereby sustained, and such right or the amount of the damages does not depend on whether the father had supported, or intended to support, the child. Therefore you are instructed that, if you believe from the evidence that Anthony Boyed is the child of Hattie Boyed and the deceased, Garfield Boyed, and you further believe that the defendant was negligent in any of the matters as herein before charged you, and that said negligence was the proximate cause of the death of Garfield Boyed, then you will allow his mother, as next friend, the amount of damages thereby sustained by said child, Anthony Boyed, and be governed by the rule in the assessing of same as hereinafter given you; but, on the other hand, if you believe that Anthony Boyed is not the child of the plaintiff Hattie Boyed by Garfield Boyed, then you will find for the defendant, as to said Anthony Boyed's cause of action by Hattie Boyed as next friend."

The charge of the court complained of in this assignment seems practically to be the same as the opinion of the court in Railway Co. v. Anderson, 126 S. W. 928, and authorities there cited. In our opinion there is no merit in the assignment, and it is therefore overruled.

[5] The fourth assignment is as follows: "The verdict of the jury in favor of Hattie Boyed, as next friend of Anthony Boyed, is greatly excessive, in that the evidence shows conclusively that if plaintiff Anthony Boyed is the child of the deceased, Garfield Boyed, said plaintiff would never have received from the deceased, had he lived, the sum of $600 either in pecuniary benefits or nurture, care or education, and that said plaintiff Anthony Boyed had no reasonable expectation of receiving from the deceased, had he lived, any such sum or any benefits of any nature whatever of the value of $600."

INGS OF FACT.

The court on appeal will not disturb a verdict rendered upon conflicting evidence sufficient to authorize the judgment. 2. DEEDS 206-EVIDENCE-SUFFICIENCY.

In suit to cancel a quitclaim deed, evidence held to show that plaintiff intentionally and with full knowledge of the nature, character, and consequences of his act, and without any mistake of facts, executed and delivered the deed intending to divest himself thereby of his interest in the land.

3. DEEDS 58(2), 65-DELIVERY-EFFECT. Delivery of a deed expressing consideration of love and affection by a grantor who understood the nature and consequences of his act to an agent, who delivered it to the grantee, who had it recorded, was a sufficient delivery and acceptance to pass the title.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit by Ben L. Smith against Maude Eva Thompson and another. Judgment for defendants, and plaintiff appeals. Affirmed. M. M. Parks and W. L. Mathis, both of Dallas, for appellant. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellees.

TALBOT, J. This suit was instituted by the appellant, Ben L. Smith, against the appellees, Maude Eva Thompson and her husband, T. M. Thompson, on May 13, 1915, in which appellant sought to have the premises described in his petition, being lot No. 19 in block No. 267, according to the official map of the city of Dallas, partitioned. It is alleged, in substance, that said land and premises were the community property of appellant's father and mother at the date of his mother's death; that his mother died intestate about 34 years prior to the filing of this suit, when appellant was a small boy, leaving surviving her Samuel G. Smith, her husband, and six children, including appellant and appellee Mrs. Thompson; that appellant owned by inheritance from his mother an undivided onetwelfth interest in the land and premises described; and that the appellee Maude E. Thompson, his sister, owned the other eleventwelfths, the other children of his father and mother having conveyed their interest in said premises to the father after the death of the mother, and the father having died on the 27th, day of February, 1912, leaving a will in which he bequeathed said property to appel

The measure of damages in cases of this character is essentially indefinite, and not capable of exact ascertainment, and therefore it is left to the sound discretion of the jury. This record fails to show that the jury were influenced by any improper consideration in arriving at their verdict, and we are unwill-lee, Maude Eva Thompson. It was further ing to reverse this case upon that ground.

alleged that the will of Samuel G. Smith had

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