Plaintiff in error filed a supplemental petition, in which appears demurrers, general and special, general and special denials, denial of any agreement to postpone the time of delivery of any lumber, alleged that plaintiff was the owner of the said $1,000 indebtedness, denied responsibility of any damage to defendants in error, and pleaded other special matters of defense, in answer to the several matters pleaded by defendants in error. The pleadings are lengthy, and in the view we take of the case we need not further state the pleadings.

The court submitted the case to the jury on 29 special issues. The jury found the facts in favor of the defendants in error, and the court thereupon entered judgment in their favor, and the case is before us on writ of error.

[1] The plaintiff in error filed in the trial court a motion for a new trial, which the

court overruled. Plaintiff in error in his brief presents 13 assignments of error, none of which can be considered by this court, because they do not conform to the rules for briefing and submitting cases. The assignments of error are not numbered as required by rule 29 (142 S. W. xii) for submission of

cases in this court, so that we cannot refer to the assignments by number.

[2] The first assignment of error presented is the second ground in the motion for a new trial, which is presented as a proposition.

It is as follows:

"The court erred in overruling of special demurrer No. 1 contained in the first supplemental petition of plaintiff to that portion of the answer of defendants setting up a verbal agreement in contravention of the written one, the said demurrer being as follows: All that portion of said answer setting up a verbal contract in contravention of said written contract is null and void, as the same is not permissible in law, the said verbal agreement being the extension of the delivery of the February and March, 1913, deliveries until the last deliveries, and also the same is without consideration."

der of the court complained of. This has not been done, and, finding no such order, we must conclude that the court made no order overruling the demurrer, and that the demurrer was not acted on by the court, but was waived by the plaintiff.

[4] In the latter part of the assignment complaint is made that the verbal agreement complained of is without consideration. The assignment is not followed by propositions nor by any statement, except a copied extract from the petition. In the absence of a statement of facts, we cannot say that the verbal agreement is without consideration. The assignment cannot be considered.

The next three assignments of error, which we designate as assignments 2, 3, and 4, complain of the action of the court in overruling special demurrers numbered respectively 7, 9, and 15. The same criticism applies to these assignments as noted to the one above, and for the same reasons the assignments cannot be considered.

[5] The next four assignments of error complain of the answers the jury gave to special issues and say the answers are against the weight of the evidence. There is no statement of facts in the record, and we cannot know what the evidence was. These assignments are overruled.

[6] The next assignment of error complains of the action of the court in submitting to the jury 11 special issues, which the assignment asserts to be irrelevant and immaterial, and states what the evidence shows the facts to be. The assignment is not followed by any proposition singling out any issue involved in any of the matters submitted. We cannot, in the absence of a statement of facts, know what the evidence showed the facts to be. The assignment itself is not a proposition, and cannot be considered.

[7] The next assignment asserts error in the failure of the court to submit to the jury an issue which the assignment asserts to be "important and material." The assignment itself is not a proposition, and there is no proposition under the assignment disclosing the point claiming error. The only statement following this assignment is that "this issue was raised by the pleadings and was material." The assignment cannot be consid

ror in admitting evidence, but there is no bill of exceptions in the record to the action of the court in admitting the evidence, and no statement of facts to show what the evidence admitted was. The assignment cannot be considered.

[10] The next and last assignment of error presented as a proposition is as follows: "The judgment of the court as entered by the court on the verdict of the jury does plaintiff great wrong and injustice and permits the defendant to have and to hold his property and get the use and benefit of the same without paying therefor."

The statement following this assignment is an assertion that “under the pleadings in this case the plaintiff in error should have had judgment on the verdict of the jury for the undisputed nonpayment of the purchase money," and that "all issues other than this

were immaterial and irrelevant to defeat the plaintiff's cause of action." Under this assignment is presented what plaintiff in error designated as "second proposition under twenty-sixth assignment of error," and states that:

"Plaintiff in error tendered to the court a judgment to be entered by it on the verdict of the jury in his favor which was as follows: [Then copies the judgment tendered.]"

The assignment itself is not a proposition, and what is presented as a proposition is not and what is presented as a proposition is not germane to the assignment, nor is either a proposition, specifically designating an error. The judgment entered by the court is such as the issues presented in the pleading and the issues of fact found by the jury would

warrant and sustain.

The assignment is overruled.
The case is affirmed.

J. W. CARTER MUSIC CO. v. BAILEY. (No. 481.) (Court of Civil Appeals of Texas. El Paso. Oct. 21, 1915.)

1. TRIAL AND CLOSE. Under Rev. St. 1911, art. 1953, providing that the party having, under the pleadings, the burden of proof on the whole case, shall be entitled to open and conclude the argument, and rule 31 for district and county courts (142 S. W. xx), providing that plaintiff shall have the right to open and conclude both in adducing evidence and in the argument, unless the burden of proof of the whole case under the pleadings rests upon defendant, or unless defendant shall admit that plaintiff has a good cause of action as set forth in the petition, except so far as it may be defeated by the facts of the answer constituting a good defense which may be established on the trial, where in an action on a note for the purchase price of a piano defendant answered by general denial and a special plea, setting up that the piano was purchased subject to his wife's approval, and that she did not approve thereof, but no admission as to the justice of plaintiff's cause of action was made, it was error to grant defendant the right to open and close the argument, though the court's charge imposed upon defendant the burden of proving his special plea, and, in effect, withdrew from the jury, and resolved in plaintiff's favor, the merits of its cause of action as set forth in the petition, and submitted only the issue raised by the special plea, as the question is not controlled by the charge, but by the state of the pleadings, or by the prescribed ad

25-ARGUMENT-RIGHT TO OPEN

Error in permitting defendant to open and conclude the argument was material and necessitated a reversal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. 1046.]

Clark C. Wren, Judge.
Appeal from Harris County Court, at Law;

Action by the J. W. Carter Music Company

against N. Bailey. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Andrews, Streetman, Burns & Logue and R. H. Kelley, all of Houston, for appellant. Sam Schwartz, of Houston, for appellee.

recover upon the latter's note in sum of $350, HIGGINS, J. Appellant sued Bailey to recover upon the latter's note in sum of $350, and to foreclose mortgage lien upon a piano, in part payment for which it was alleged the note was given.

Bailey answered by a general denial, special plea setting up that the piano was purchased subject to the approval of his wife, and by the terms of the agreement he was not required to accept and pay for the instrument unless his wife approved the same, that his wife did not approve of it, of which fact he notified appellant, and he was therefore not liable upon the instrument sued upon.

The jury was instructed that the burden of proof rested upon Bailey to prove by a preponderance of the evidence his contention that the sale of the piano was subject to his wife's approval. The only issue submitted for the jury's determination was whether it was agreed and understood by the parties, when the note sued upon was executed, that the sale of the piano was subject to the approval of defendant's wife. Upon an affirmative answer thereto, judgment was rendered in defendant's favor.

[1] Upon trial, and after close of the evidence (which was opened and concluded by plaintiff), defendant requested and was granted the right to open and close the argument. No admission whatever was made by defendant as to the justice of plaintiff's cause of action as provided by district and county court rule 31 (142 S. W. xx) and the right to open and conclude the argument was granted over plaintiff's protest. The case is here presented upon a single assignment complaining of the action of the court in this respect. The court erred. Its action was directly contrary to and in the face of article 1953, R. S., and the court rule above mentioned. Smith v. Eastham, 56 S. W. 218; Halsell v. Neal, 23 Tex. Civ. App. 26, 56 S.

[1, 2] Hays sent the money, and sent it with a condition attached to it, even if it had reached the prosecuting attorney. This condition was that the prosecution be dismissed against Charles Clayton. Until that was done Smith Bros. had no claim on the money. It would not even have been subject to garnishment by them because Clayton is the man who owed them the debt, and this money was sent by Hays and belonged to him until delivered according to proposed contract by the prosecuting attorney. For that matter the condition attached to the delivery of the money was illegal and contrary to public policy, but that fact did not make it Smith Bros.' money. Hays may have had a cause of action against the company for failing to deliver his messages, and later when Lightfoot converted his money, but this could not have afforded appellees a cause of action. If Clayton owed them $125, that debt was not discharged, and no act of appellant has put them in a worse attitude than they were before Hays parted with his money. There never was anything Smith Bros. could have stood upon to recover this money so sent, because it was never intended they should have it until the condition attached was complied with, and this condition they could not in law cause to be complied with, because it was illegal and void.

Too often the criminal courts of this state are sought to be used as collecting agencies, the aggrieved creditor rushing to the prosecuting attorney and making complaint, but later significantly suggesting to the culprit or his relatives that he really believes there is yet some good in the man, and if his money is paid, he will be satisfied and will stop the prosecution. And it is well that people know that the criminal courts are for one purpose, and the civil courts for a very different purpose. It is not intended by this to intimate that appellees have indulged in this reprehensible practice, but the writer has met this trouble so often in the office of prosecuting attorney that he could not refrain from saying something about it; and the court very kindly permitted the same.

The briefs of the parties contain no authorities, but on the subject of fraud of telegraph agents we have found very interesting reading in the following: Usher v. W. U. Telegraph Co., 122 Mo. App. 98, 98 S. W. 84; W. U. Telegraph Co. v. Uvalde Nat. Bank, 97 Tex. 219, 77 S. W. 603, 65 L. R. A. 805, 1 Ann. Cas. 573; W. U. Telegraph

[Ed. Note.--For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. 37.] 2. VENDOR AND PURCHASER 239- BONA

FIDE PURCHASER-RIGHTS OF. Where the question was solely one of boundland which it claimed, the bona fides of plainary, and plaintiff was not in possession of the tif's purchase or want of notice does not give him additional rights.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. 239.]

Appeal from District Court, Harris County; J. W. Woods, Special Judge.

Trespass to try title by the Lockwood Investment Company against M. P. Geiselman. From a judgment for defendant, plaintiff appeals. Affirmed.

H. F. Ring, of Houston, for appellant. Fisher, Campbell & Amerman and W. F. Tarver, all of Houston, for appellee.

HIGGINS, J. Appellant brought this suit in trespass to try title to recover lots 1, 2, 10, 11, and 12 in block 49 in Foster's Second North addition to the city of Houston. It was alleged that the south line of block 49 was 410 feet north of the north line of blocks 106, 107, and 108 in the S. F. Noble addition to said city. Appellant has record title to the lots mentioned, and appellee, Geiselman, has record title to block 54 in said Foster addition. Block 54 is in the south tier of blocks of the Foster addition, and block 49 lies just north of 54 in the next tier of blocks. Appellant claims that the south line of the addition should be located further south than is claimed by appellee. If located as by appellant contended, it would fix the south line of the addition at the point alleged by appellant, and the lots claimed by it would be located on property claimed by and in possession of Geiselman. The question involved is one of boundary, the point at issue being the location of the south boundary line of the Foster addition. The land in