ground that it had not promised payment | asks is that they shall do what the law says in said county. they agreed to do when they took their mortgage, and that is recognize the superiority of appellee's prior mortgage. The judgment in favor of appellee does nothing more than enforce his written contract to which the appellants, for the purpose of the proper enforcement of the same, have voluntarily, to that extent, made themselves parties. Under such circumstances, I do not think that they should be permitted to oust the justice court in Coleman county of its jurisdiction conferred by the contract sued on by claim Here Hager had promised payment in Coleman county; but the appellants had not, and the case comes within the rule above announced. It is true that said ruling was based upon article 1830, prescribing venue of suits in district and county courts; but we hold that there is no material difference between it and the justice court act in this particular. We have carefully examined both acts, and fail to find any basis for appellee's contention that there is such dissimilarity between the two as to make the rulinging that suit must be brought to enforce said in Behrens Drug Co. v. Hamilton & McCarty inapplicable to the facts in the present case. In this connection we cite the recent case of Sublett v. Hurst et al., 164 S. W. 448, and also the cases of Zapp v. Davidson et al., 21 Tex. Civ. App. 566, 54 S. W. 366; Behrens v. Brice et al., 52 Tex. Civ. App. 221, 113 S. W. 782; Johnson v. Lanford et al., 52 Tex. Civ. App. 397, 114 S. W. 693; Breed v. Higginbotham Bros., 141 S. W. 165; St. Louis S. W. Ry. Co. v. McKnight, 99 Tex. 289, 89 S. W. 755; Lindheim v. Muschamp, 72 Tex. 33, 35, 12 S. W. 125; Cohen v. Munson, Guardian, 59 Tex. 236; Fermier v. Brannan, 21 Tex. Civ. App. 543, 53 S. W. 702-which cases follow the rule laid down in Behrens Drug Co. v. Hamilton & McCarty, supra. Believing that the court erred in rendering 'judgment against appellants, the case is reversed, with instructions to the trial court to transfer same to the justice court, either of precinct No. 1, Wichita county, or to the justice court of precinct No. 4, Clay county, at the option of appellee. Reversed, with instructions. JENKINS, J. (dissenting). I do not concur in the view expressed in the majority opinion herein that appellants' plea of privilege to be sued in the county of their residence should be sustained. I think that the justice court in Coleman county had jurisdiction as to them by virtue of subdivision 5 of article 1830, R. S. 1911, which reads: "Where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile." The obligation sued on was to be performed in Coleman county, and it is conceded that as to Hager the suit was properly brought in that county. The only judgment asked was the enforcement of that contract; that is to say, judgment against Hager on the note and foreclosure of the mortgage on the property described in that contract. Appellants, being subsequent mortgagees, were proper parties to the suit. They took their mortgage with constructive knowledge of appellee's prior mortgage, and were charged with notice, as a matter of law, that they could properly be made parties to a suit to enforce the prior mortgage. No personal judgment is sought contract in the county of their residence. If the contract is not enforced against a subsequent mortgagee, in effect, it is not enforced at all. I do not think that a subsequent mortgagee should be permitted to nullify the statute which gives jurisdiction in the county where the contract is to be performed. The point in issue in this case was not involved in either of the cases cited in the majority opinion, except the case of Sublett v. Hurst, 164 S. W. 448. I think that the honorable Court of Civil Appeals for the Sixth District fell into error in that case by reason of its failure to consider the facts in the case of Behrens Drug Co. v. Hamilton et al., 92 Tex. 284, 48 S. W. 5, upon which it based its opinion. The Behrens Case was not a suit to foreclose a mortgage, but was a suit against Hamilton & McCarty on a note payable in McLennan county, and for a personal judgment against the First National Bank of Comanche, by reason of its alleged conversion of the mortgaged property. The bank was not liable on the contract sued on for the reason that it was not a party to such contract. It was not suable in McLennan county as a proper party to the enforcement of the mortgage, for the reason that no foreclosure of the mortgage was sought. The only alleged liability of the bank was by reason of its conversion of the mortgaged property, alleged to have been committed in Comanche county, and, under no exception to the statute, could the bank be sued, without its consent, in McLennan county for a tort committed in Comanche county. This is the extent of the holding in the Behrens Case. In Sapp v. Davidson et al., 21 Tex. Civ. App. 566, 54 S. W. 366, Freeman, who lived in Ellis county, was sued in Fayette county for converting cotton in Ellis county. In Behrens v. Brice et al., 52 Tex. Civ. App. 221, 113 S. W. 782, the Haywood Oil Company, whose place of residence was Jefferson county, was sued in Harris county for a tort committed by it, if at all, in Hardin county. In Johnson v. Langford, 52 Tex. Civ. App. 397, 114 S. W. 693, the suit was against Johnson and Earnest Langford in precinct No. 1, in Comanche county. The contract was not to be performed, nor did either of the defendants live, in said precinct. In Breed v. Higginbotham, 141 Hill upon a contract to be performed by him, Paso, Tex., whereby the defendant agreed to in Comanche county, and Mrs. Breed, who pay a certain sum per head if plaintiff should lived in Brown county, was made a party procure a purchaser and effect the sale of for the purpose of enforcing a mortgage ex- certain cattle for defendant. ecuted by Hill. Hill was not cited, and for that reason it was held that no judgment | fendant in the city of Chihuahua, Mexico. could be rendered against Mrs. Breed. The court said: In Railway Co. v. McKnight, 99 Tex. 289, 89 S. W. 755, the St. Louis & Southwestern Railroad was sued in Potter county, upon a contract to which it was not a party, for a tort alleged to have been committed by it in Bowie county. In Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125, defendants were sued in a county other than that of their residence on a contract not to be performed in any particular place. This was also the fact in Cohen v. Munson, 59 Tex. 236. In Fermier v. Brannan, 21 Tex. Civ. App. 543, 53 S. W. 702, one of the defendants lived in the county where the suit was brought, and it was held that the other defendant could properly be sued in that county, though they were husband and wife living in different counties. These are all of the cases cited in the majority opinion. The correct judgment was rendered in Sublett v. Hurst, supra, for the reason that the mortgage was void as to Sublett. Burlington Bank v. Marlin Bank, 166 S. W. 499, decided at the present term of this court. PRIETO v. HUNT. (No. 309.) (Court of Civil Appeals of Texas. El Paso. May 7, 1914.) EVIDENCE (§ 185*)-SECONDARY EVIDENCE. In an action for commissions for the sale of cattle, evidence held to show that the possession of a letter evidencing the contract was wrongfully and fraudulently obtained by defendant, thus rendering secondary evidence of the contents thereof admissible without notice to defendant to produce the original. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 642-660; Dec. Dig. § 185.*] Appeal from District Court, El Paso County; A. M. Walthall, Judge. Action by Charles F. Hunt against Francisco A. Prieto. From a judgment for plaintiff, defendant appeals. Affirmed. Ballard Coldwell, of El Paso, for appellant. Chas. A. Kinkel, of El Paso, for appellee. HIGGINS, J. Hunt filed suit against Prieto to recover the sum of $2,961.75, alleged to be due as commission for the sale of cattle. It was averred that the parties had entered into a written agreement in the city of El Plaintiff resides in El Paso, Tex., and de The testimony discloses that the contract between the parties was evidenced by a letter written by Prieto to Hunt, in which the former agreed to pay to the latter a sum per head for cattle to be sold by Hunt. Upon the trial secondary evidence of the contents of this letter was admitted over the objection that a proper predicate therefor had not been laid, since notice to produce the original had not been given. It was shown that the letter was in possession of the defendant, who obtained the same under the following circumstances: After the sale had been effected, Prieto failed to pay any commission, and wrote Hunt that he was in error in claiming the amount which he demanded, but, if Hunt had in his possession "any evidence that justifies what you say, I will comply with the requirements of such document." Mrs. Hunt took the letter containing the proposition of Prieto and went to the city of Chihuahua, Mexico, to see him. She called upon him and gave him a statement of the account, together with the letter conMrs. Hunt taining his original proposal. testified: "I left that letter with him because he told me to return in the afternoon, and that he would settle on the basis of that letter and statement at his residence in Chihuahua. I did return to his residence at 4 o'clock that afternoon. I did not get the letter; his servant told to see him in the morning, he was called to the me he had gone to the country. When I went door by his servant, and he talked to me very gruffly, and told me to return. I only went in as far as the vestibule. I handed him the letter and statement together. * Mr. Prieto told me the morning I called on him to return in the afternoon at 4 o'clock and he would settle. When I returned, his servant said he was not there, but his coach was at the side of the house. I have never seen the letter since that time." * The general rule is well settled that secondary evidence of the contents of a written instrument in the possession or under the control of the adverse party is inadmissible, unless due notice to produce the original has been given. To this rule there are a number of exceptions; one, to the effect that it is not necessary that such notice to produce be given if the adverse party has wrongfully or fraudulently obtained possession of the document. 2 Jones' Commentaries on Evidence, § 223, at page 295; 17 Cyc. 529; Cheatham v. Riddle, 8 Tex. 162. The circumstances detailed above strongly indicate that Prieto fraudulently obtained possession of the letter for the purpose of destroying the absolute and primary evidence of his obligation. The letter in which he wrote Hunt that, if there was any evidence in Hunt's possession justifying the demands made, he would comply with the requirements thereof, coupled with the facts testified to by Mrs. Hunt, showing that he obtained the letter under promise of adjustment, and his failure to keep his appointment made for the purpose of making the same, was sufficient evidence to warrant the trial court in assuming that possession of the letter had been wrongfully and fraudulently obtained. Ry. Co. v. Dilworth, 95 Tex. 327, 67 S. W. 88. For the reason indicated, the court did not err in admitting secondary evidence of the contents of Prieto's letter, and the judgment is affirmed. RAINEY, C. J. Appellant, a corporation, whose office and place of business was in Beaumont, Jefferson county, Tex., contracted with J. M. Carter, a resident citizen of Kaufman county, Tex., to ship him from Beaumont ten cars of bran. Eight cars were shipped by appellant to Carter, but appellant refused to ship the two remaining cars, and Carter claimed damages in the sum of $110, which appellant refused to pay, claiming that the eight cars contained the amount contracted for. Carter transferred his claim against appellant for a valuable consideration to L. H. Ardis, also a citizen of Kaufman county, and guaranteed the payment of the claim. Ardis brought this suit in Kaufman county against J. M. Carter and appellant on said claim. Appellant interposed a plea of privilege to be sued in the county of its residence, which is Jefferson, and pleaded subject to said plea of privilege that it had complied with the terms of said contract. 1. RAILROADS (§ 446*)-INJURIES TO ANIMALS ON TRACKS-JURY QUESTION. In an action for the value of a mule killed by, one of defendant's trains, where there was evidence of defendant's negligence in the particulars charged, the question of negligence was for the jury. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.*] 2. RAILROADS (§ 413*)-INJURIES TO ANIMALS ON TRACKS FENCES DUTY TO REPAIR GATES. Where a railroad company assumed the duty of keeping in repair a gate which, for the its right of way, plaintiff is entitled to recover benefit of plaintiff, it placed in the fence along for the value of a mule which escaped because of defects in gate and was killed on the right of way. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1459-1472; Dec. Dig. § 413.*] 3. APPEAL AND ERROR (§ 882*)-REVIEW-ESTOPPEL TO ALLEGE ERROR. Where special instructions given at appellant's request were not correct, the conflict between such instructions and the court's charge which correctly declared the law is no ground for reversal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*] Appeal from Caldwell County Court; J. T. Ellis, Judge. Action by H. C. Withers against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed. A. B. Storey, of San Antonio, and Jeffrey, Jeffrey & Fielder, of Lockhart, for appellant. E. B. Coopwood and M. O. Flowers, both of Lockhart, for appellee. KEY, C. J. Appellee sued appellant for the value of a mule, alleged to have been killed by one of appellant's passenger trains; and, from a judgment in favor of the plaintiff, this appeal is prosecuted. A trial was had before the court without [1] Appellant's right of way was fenced at a jury, and a judgment rendered by the the place where the animal was killed, and court overruling said plea of privilege, and the proof indicates that it made its escape from appellee's field onto the right of way through a gate that appellant had put in the fence. Appellee charged in his petition that appellant was guilty of negligence in letting the fence and gate get out of repair, so that the mule could go on the right of way, and that the employés in charge of the train saw the animal on the track and were guilty of negligence in not checking the speed of the train, so as to avoid injuring it. The plaintiff submitted testimony tending to support both of his allegations of negligence, and therefore the court properly submitted both of them to the jury. [2] Appellant contends that it could not be held liable upon the theory that the gate was out of repair, because the proof shows that it was put there for the benefit of the plaintiff and his tenants. It was also shown by uncontroverted proof that appellant had always assumed the duty of keeping the gate in proper repair, and that fact, it seems, takes the case out of the rule invoked by appellant. Railway Co. v. Russell, 48 Tex. Civ. App. 155, 106 S. W. 438. Appellant urges some objections against the court's charge; but, being of the opinion that they are not tenable, they are overruled. [3] We are disposed to concur in appellant's contention that there was conflict between the court's charge and some of the special instructions given at appellant's request; but, to the extent of such conflict, the requested instructions were not correct, and should not have been given, and therefore we hold that the conflict referred to affords no ground for reversing the case. There are some other assignments in appellant's brief, all of which have received due consideration, and are overruled. No reversible error has been shown, and the judgment is affirmed. Affirmed. Appeal from Lee County Court; John H Tate, Judge. Action between the Western Union Telegraph Company and Fricke & Boyd. From a judgment for the latter, the former appeals. Motion to dismiss sustained, and appeal dismissed. Watson & Simmang, of Giddings, for the motion. JENKINS, J. [1] On a former day of the present term we inadvertently indorsed on appellees' motion to dismiss this appeal "Overruled," and judgment was accordingly entered. We supposed at that time that we were passing on the contention of appellant that the county court was without jurisdiction, for the reason that the judgment appealed from was less than $20. This contention was decided adversely to appellant in Brazoria County v. Calhoun, 61 Tex. 223. [2] We set aside the order overruling motion to dismiss upon our own motion, and sustain said motion and dismiss this appeal, for the reason that both the amount in controversy and the judgment of the county court were for less than $100. Rev. Stat. art. 1589, subd. 3; Green v. Warren, 18 Tex. Civ. App. 548, 45 S. W. 608. Motion sustained, and appeal dismissed. NEWMAN v. BENGE & FLEMISTER. (No. 5343.) Austin. (Court of Civil Appeals of Texas. April 29, 1914.) FRAUDS, STATUTE OF (§ 160*)-INSTRUCTIONS— REFUSAL. In an action for debt, where the pleadings and testimony presented the defense of the statute of frauds as to some of the items sued upon, the refusal of a requested charge correctly submitting that issue was erroneous. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. § 379; Dec. Dig. § 160.*] Appeal from Concho County Court; James E. Houze, Judge. Action by Benge & Flemister against W. S. Newman begun in justice court. From a judgment for plaintiffs in the county court, defendant appeals. Reversed and remanded. George E. Critz, of Paint Rock, for appellant. Hayne P. Young and Jas. M. Simpson, both of Paint Rock, and Woodward & Baker, of Coleman, for appellees. KEY, C. J. This case originated in a justice's court, but was appealed to, and finally tried in, the county court. It is an action of debt. The plaintiffs recovered, and the defendant has appealed. Some of the objections urged by appellees to appellant's brief are well taken; but we hold that the third assignment, which complains of the action of the trial court in refusing to give a requested instruction, is presented in such a manner as to require consid eration, and that error was committed in refusing to give that charge. The pleadings and the testimony presented the defense of the statute of frauds as to some of the items in the account sued on by appellees, and the court failed to charge upon that subject. The requested instruction was correctly framed, and would have supplied that omission, and it was error to refuse to give it; for which reason the judgment is reversed, and the cause remanded. Reversed and remanded. CHICAGO, R. I. & G. RY. CO. v. LA GRONE. (No. 1325.) (Court of Civil Appeals of Texas. April 30, 1914.) Texarkana. RAILROADS (§ 381*)-PERSONS ON TRACK-IN He [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1285-1293; Dec. Dig. § 381.*] Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge. Action by W. T. La Grone against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. case than immediately pertains to the present question. While appellee was walking on the crossties of the track, outside the rail, he was struck in the back by the end of the pilot beam of an approaching passenger locomotive. He was knocked forcibly to the ground. and was injured, as he claims, and sues for such injury. The injury occurred in the yard of appellant about 200 feet south of where Fourth street crosses the appellant's tracks. It appears that appellee on the morning of July 3, 1912, was going to his daily work in the shops of a railway company other than appellant. He lived north of Belknap street in Ft. Worth leading by the courthouse. In- . stead of continuing to his work by the public streets, appellee concluded to go through aptracks, as being a shorter route to his workpellant's yard in a pathway between two JURIES-CONTRIBUTORY NEGLIGENCE. Plaintiff passed over a street onto defend-ing place. The space between the two tracks ant's right of way in a city railroad yard and was between six and eight feet wide, and was pursued a pathway between two tracks. became aware of a following train, left the a well-beaten pathway, which, according to pathway, and traveled on the ends of the cross- the evidence offered by appellee, was used ties along the track on which he supposed the generally by the public as a passage way. train would not come, because from weeds and The tracks of appellant ran north and south grass growing thereon he believed it was not the regular track. After walking on the ties for a long distance. It is heavy upgrade goabout 75 feet, he was struck in the back by ing south. Appellee was traveling south. the end of the pilot beam of the engine of the When appellee reached a point about 100 train which in fact was approaching on the feet south of Fourth street crossing, and track near which plaintiff was walking on its way to a station. Plaintiff after getting on some 400 feet south of a curve in the tracks, the ties paid no further attention to the train, and of a grain elevator, he heard the exhaust but if he had looked back he would have dis- of a locomotive and looked back north and covered his danger in ample time to have avoided it. Held, that he was negligent as a matter saw over the top of some standing box cars of law. on a track an approaching passenger train from the north going in the same direction he was traveling. It was the regular passenger train on time going into the depot. At the time appellee looked back and became aware of the train, it was about 600 feet distant from him, and was going about 12 or 15 miles an hour. The view up the tracks was plain and unobstructed. Appellee says: "When the engine got within 600 feet of me, there was nothing to obstruct the view of the engineer, from where he came out from behind those box cars. There was nothing to obstruct either his view or mine." Appellee upon becoming aware of the train immediately left the pathway he was traveling, and got upon the end of the cross-ties, outside the rail, of the immediate west track, and continued his course, walking on the end of the cross-ties instead of in the pathway as before. After walking on the cross-ties about 75 feet, he was struck in the back by the end of the pilot beam of the engine of the approaching passenger train. Appellee after getting on the cross-ties never paid any more attention to the approaching train or his safety, or made any effort to get out of its way. Appellee admits, "I did not turn my head and look back again." These facts are admittedly proven. Appellee explains his conduct by saying that the immediate west track that he got on appeared, from weeds Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. McCart, Bowlin, Terrell & McCart, of Ft. Worth, for appellee. LEVY, J. The action is by appellee to recover damages for personal injuries resulting from the alleged negligence of appellant. The jury returned a verdict for appellee. The court in the charge to the jury authorized a recovery in favor of appellee upon the two alleged grounds of (1) violation of city ordinances as to rate of speed of the train and continually ringing the bell of the engine, and (2) discovered peril. The appellant by proper assignments predicates error upon authorizing a recovery on the first ground mentioned, upon the contention that the evidence admittedly shows that appellee was guilty of contributory negligence. We conclude that as this contention must be sustained, and the judgment reversed on account of the prejudicial error, it becomes unnecessary to make further statement of the |