leging that appellant was duly incorporated under the laws of Texas, and that on the 16th day of December, and on the 2d day of June, 1892, was doing a general business of loaning money, and taking liens upon real estate as security therefor, under the name National Building & Loan Association, and that thereafter, in 1893, its name was changed to Cotton States Building Company; that appellees, on the said 16th day of December, 1892, were husband and wife, and occupied the land described in their petition as a homestead; that on said date, plaintiff Jones, being desirous of borrowing $1,000, was solicited by an agent of appellant to borrow said sum from appellant, and was informed by said agent and the literature of appellant that it would be necessary for him to subscribe for twenty shares of stock in appellant company, and to pay thereon six months, before he could obtain the loan; that he purchased the said shares from one Miller, who had already subscribed for twenty shares, paying therefor $35, being the amount said Miller had paid appellant company; that said purchase was made with the knowledge and consent of appellant, and with the knowledge that said shares were not purchased as an investment, but for the purpose of procuring a loan; that the shares so purchased from Miller were taken up by appellant, and a certificate for twenty shares was issued to him in lieu thereof, and that thereafter, on the 16th day of December, A. D. 1892, J. T. Jones and wife entered into a contract with appellant, which contract is made an exhibit to plaintiffs' petition, and by the terms of which appellant agreed to erect certain improvements on the land in said contract described according to certain plans and specifications, and J. T. Jones and wife promised to pay appellant therefor $1,000. In said contract appellees bound themselves to pay said company $7 per month, on or before the 5th day of each month, on their twenty shares, and also the sum of one dollar per month towards creating a contingent fund until the maturity of said shares of stock, as provided for in the plan and bylaws of the company, which plan and bylaws are made and taken to be a part of said contract. They further agreed to pay $8.33% per month as interest on said sum from the 16th day of December, 1892, until the maturity of said June 5th series of stock. Appellees alleged that the taking of the stock and making the contract were parts and parcel of the same transaction; that the stock was but a fiction; that the contract was a scheme and device to cover up usury; and alleged that they had paid the appellant over $1,300; wherefore they asked that all payments made be applied to the satisfaction of the $1,000 obligation, and that they have judgment for the excess paid over said sum, and for cancellation of same." Appellant answered by general denial, and for special answer and cross bill alleged that it was a

mutual building and loan association, setting out the plan and by-laws of the company at length; and further alleged that on or about the - day of -, 1892, one Miller made application in writing to the defendant company for 20 shares of stock, which application was set out in full, and which was alleged to have been destroyed by fire; that said stock was issued to Miller, and was afterwards transferred to Jones; that thereupon Jones and wife made the contract as alleged by plaintiffs, and had made payments on stock to the contingent fund and by way of interest; denied specially that the plan of the company was a device to cover up usury, and alleged that, if said contract was rendered usurious by reason of the collection of the one dollar per month, denominated "contingent fund," said Jones and wife had heretofore received from appellant the total amount paid to said contingent fund, and had executed a contract in writing acknowledging such receipt, and by which contract the company was released from all liability of whatever kind by reason of the collection of said contingent fund; that after the execution of said contract said contingent fund of one dollar per month was no longer collected, and that, therefore, the contract, if ever usurious, was purged and freed from the taint of usury. Appellant alleged, further, that the stock of appellees had not matured; that they had failed to pay their monthly installments for more than three months; and that the company had, by resolution, declared the payments to said stock forfeited, and the entire debt due; and it prayed for judgment for its debt, attorney's fees, costs of suit, and foreclosure of lien. A trial was had before a jury, and resulted in a verdict in favor of appellees for $309.65; whereupon judgment was entered by the court canceling and holding for naught the mechanic's lien, removing cloud from title, and awarding execution against appellant in favor of plaintiffs for the said sum of $309.65, and all costs of suit. Appellant moved for new trial, which was overruled; gave notice of appeal; filed appeal bond; assigned errors; and now brings the case to this court for revision of errors.

We find but a single proposition that, in our opinion, requires of us particular notice, and this arises from a consideration of the third and sixth assignments of error, and appellant's proposition thereunder. They are as follows: "The court erred in giving the third paragraph of the charge." "The court erred in refusing to give the third special instruction asked by defendant." Proposition: "The refunding of usurious interest that has been received, and its acceptance by the payor under an agreement that only legal interest shall thereafter be charged, frees the obligation from the taint of usury, and renders both principal and such legal interest collectible." The court, after having charged the jury that if they found that the purchase

of stock, contracts, etc., were parts of one transaction, and was a fraudulent device or scheme to evade the usury law, and that by means thereof appellant had in fact collected more than 10 per cent. interest per annum on the loan, they should find the contract usurious, and for plaintiff, also instructed them as follows: “(3) If you find that the stock issued to plaintiff, as set out in said contract, was not a fraudulent scheme or device to evade the usury law, but that the same was real or genuine stock, yet if you should further find that the monthly payments of $1.00, called 'contingent fund' in said contract, was a scheme or device to evade the usury law, and was inserted in said contract and paid for the use of the money borrowed by plaintiff from defendant, this would render the said contract usurious, and you will so find by your verdict." In this connection the appellant requested the court to give its third special charge, which was refused by the court. This special charge was as follows: "I charge you, gentlemen of the jury, if you believe from the evidence that the $1 per month denominated a 'contingent fund' payment in the contract read before you was exacted from the plaintiff for the use of the money borrowed by him from defendant company, then I instruct you that such exaction would render the contract usurious; but, further, in this connection, the uncontroverted evidence showing that plaintiff received from defendant, by way of credit on the sum owing by plaintiff to defendant, the whole amount paid into said contingent fund, and that he received the same and acknowledged by his contract in writing offered in evidence that said sum was received in full satisfaction and accord of all demands he might have against the company by reason of his payment to said fund, I charge you that by said contract said original contract was purged of usury." The contract entered into obligated appellees to pay appellant company $7, on or before the 5th day of each month, on the 20 shares of stock issued to them, and $1 per month to what was designated as the contingent fund, and the further sum of $8.33% per month as interest on their $1,000 loan from the 16th day of December, 1892, until the maturity of the stock. The evidence shows that appellee J. T. Jones paid $53.58 into the contingent fund, at the rate of $1 per month; that, after he had paid this amount, the company, by resolution of its board of directors, discontinued the further collection of the contingent fund, and refunded the amount received from plaintiff to him, by crediting said sum on the $1,000 obligation, and that Jones and wife executed a contract by which, for the recited consideration of the payment to them of said amount, to be credited on the principal sum which they owed the company, making the principal sum due thereafter the sum of $946.42 instead of $1,000, and in further consideration, as recited, that thereafter no contingent

fund should be collected, and the monthly interest payments should be reduced from $8.33% per month to the sum of $7.88% per month, they renounced and declared fully satisfied "any and all claims and demands that we may have or be entitled to by reason of having paid heretofore any sum of money or payments to the said contingent fund, and this is to be a complete accord and satisfaction between us and said company of any and all claims, of whatever nature, arising, or which may arise, out of the payment made by us to said contingent fund." It was further shown that the $1 payment to the contingent fund was required of borrowing stockholders only, and it is, in effect, admitted, as we think, that this payment was in fact received as part of the compensation to be received by appellant company for the money loaned appellees, and that the requirement of its payment in fact constituted the contract in question usurious. Appellees' evidence also tended to establish the fictitious character of the stock issued to them, and that the contract in its inception was but a device to avoid the effect of the usury law of this state, as alleged in appellees' petition.

We think it evident, from this statement, that the third and sixth assignments of error must be overruled. The third paragraph of the court's charge was correct, in so far as the law was therein stated. It is true it failed to include the issue of refunded usurious interest, but this was a special defense pleaded by appellant, and, if error, was one of omission, necessitating, under well-settled rule, the presentation of an appropriate special charge supplying the omission. It is insisted that this was done in the special charge above set out, but we cannot agree to this contention. The special charge entirely ig nored the issue of usury arising under other evidence. If the stock, as the evidence of appellees tended to show, was not real, but its issue was a mere manipulation, fiction, or device, by means of which a greater rate of interest than that allowed by law could be collected, then the stock payments required and made would constitute the contract usurious, notwithstanding the effect that otherwise should be given to the fact that the payments credited to the contingent fund had been refunded. The evidence showed that, at the time of the execution of the release and refunding of the contingent fund payments pleaded by appellant, appellee J. T. Jones had made some 53 monthly stock payments, of $7 each. Such payments, if the stock was fictitious, would be applied by the law in payment, pro tanto, of the principal, in which event the release and contract for the payment of the lesser rate of interest pleaded by appellant was itself usurious, in that it provided for a greater rate of interest than that allowed by law on the amount then actually due. Other features might be mentioned, but we think it sufficiently appears that the special charge was properly

refused. See Association v. Biering, 86 Tex. 476, 25 S. W. 622, 26 S. W. 39; Association v. Seebe (Tex. Civ. App.) 40 S. W. 875. Other assignments have been examined, but we find no reversible error therein, and, as stated, nothing requiring, as we conceive, extended notice. In our judgment, the evidence is sufficient to establish the material allegations of appellees' petition, and to support the verdict and judgment in their favor. So finding, and no reversible error as assigned having been discovered, it is ordered that the judgment of the district court be in all things affirmed.

WURZBACH v. BURKETT.1

(Court of Civil Appeals of Texas. Dec. 19,

1900.)

PUBLIC LANDS-DETACHED SCHOOL LANDS-
COLLUSION IN PURCHASE-SET-
TLERS-PREFERENCE.

1. That a person buying detached school land collusively agreed that he would secure it for the benefit of a minor is not ground for impeaching the validity of his purchase; Sayles' Civ. St. art. 4218y, providing that such land may be sold to any purchaser except to a corporation.

2. That one of two contesting claimants to detached school land was an actual settler gives him no advantage, Sayles' Civ. St. art. 4218y, providing that such land may be sold to any purchaser without actual settlement.

ing invalid, the land was on the market, and on February 16, 1900, W. A. Wurzbach made application to buy the land, and complied with all the statutory requirements, but his application was rejected because the land had, on June 20, 1898, been awarded to Hines Rothe. On February 24, 1900, defendant in error went into possession of the land, and regularly applied for purchase of it, which was, on March 3, 1900, rejected, because the land had been sold to Hines Rothe on June 20, 1898. This is a contest, it will be noted, between two parties whose applications have been rejected by the land commissioner, and the grounds upon which Burkett contends that he should have the land are that there was fraud and collusion between Wurzbach and Rothe whereby the former was to get the land for the latter, and that Burkett has precedence over Wurzbach because he is an actual settler. If the first ground could be available to defendant in error, there is no evidence of any fraud or collusion. But, if there had been such evidence, we do not think that a person buying land under the law applying to detached land could have his title attacked because he may desire to let some one else have the benefit of the purchase. The sale of such lands is inhibited as to none but a corporation. Sayles' Civ. St. art. 4218y, and amendment thereto in Gen. Laws 1899, p. 235. While the land laws

Action by J. Z. Burkett against W. A. Wurzbach and another. From a judgment for plaintiff, defendant Wurzbach brings error, and defendant Rothe appeals. Reversed on error of defendant Wurzbach.

W. A. Wurzbach, in pro. per. V. H. Blocker, for defendant in error.

FLY, J. This is a writ of error prosecuted from a judgment in favor of defendant in error against plaintiff in error and Hines Rothe for 640 acres of free school land in Medina county. Hines Rothe prosecuted an appeal from the same judgment, which appeal has been consolidated with this writ of error proceeding, and will be disposed of by the same judgment. The tract of land in controversy is what is termed in the statute isolated and detached school land. On June 20, 1898, the land was awarded to Hines Rothe, who was at that time 19 years of age, by the land commissioner.

The supreme

court has held that a sale of school lands to a minor is null and void, and, whatever may be the opinion of this court in the matter, the opinion of the supreme court must prevail. State v. Rogan (Tex. Sup.) 54 S. W. 1020; Eastin v. Ferguson, 4 Tex. Civ. App. 643, 23 S. W. 918. The sale to the minor be

1 Rehearing denied January 23, 1901, and writ of error denied by supreme court.

expressly provided in the article above cited, as well as in the amendment, that in counties organized prior to 1875 surveys which are isolated and detached from other surveyed school lands may be sold to any purchaser, except to a corporation, without actual settlement. As to the class of lands being considered, an actual settler has no superior rights of purchase over any other purchaser, and, if such actual settlement should give any preference, the settlement should take place before the rights of another purchaser have accrued. The rights of Wurzbach must be dated from the time that he, in compliance with law, made his application to purchase; and such rights cannot be affected by the subsequent settlement of another. The question of good faith on the part of Wurzbach does not arise under the law or the facts of this case. When he established an application for the purchase of isolated land under article 4218y, in a county organized prior to 1875, he showed his right to the land, and such right could not be defeated by any supposed desire on his part to shield and protect Hines Rothe. The judgment of the district court is reversed, and judgment here rendered that J. Z. Burkett take nothing by his suit, and that plaintiff in error recover the land of Burkett and Hines Rothe, together with his costs in this and the lower court expended.

OSTROM v. CITY OF SAN ANTONIO.1 (Court of Civil Appeals of Texas. Nov. 14, 1900.)

TRESPASS-PUBLIC HEALTH-MASTER AND

SERVANT.

Where the superintendent of street cleaning and sanitation of a city directed his men to haul garbage over a certain road, which the city was enjoined from using, the city was not liable for trespass on such road, since it was not liable for the negligent or willful acts of its officers in matters concerning the general health and comfort of the public.

Appeal from district court, Bexar county; R. B. Green, Judge.

Action by Sarah F. Ostrom against the city of San Antonio. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Edw. Ostrom, for appellant. Geo. C. Altgelt, for appellee.

JAMES, C. J. Appellant sued the city for damages, alleging that she had obtained a decree perpetually enjoining the city, its agents, servants, and employés, from using or continuing to use any part of her certain land as a road, street, or highway, and that defendant, notwithstanding said decree, through its authorized officers, agents, employés, and servants, had wrongfully continued to use such road by traveling over same with its wagons, carts, etc., against plaintiff's consent, to her damage. The cause was tried by the judge, who rendered judgment for the defendant. The action was, in substance, one for damages for trespass upon land. There was no proof that the city directed or authorized the use alleged of this road as a route for wagons and carts used by its employés for carrying the garbage of the city to the dumping grounds. The utmost that could be said of the testimony in favor of plaintiff is that the superintendent of street cleaning and sanitation of the city gave direction for or encouraged the use of this particular route; there being other practicable routes, as the evidence showed. We are of opinion that the judgment should be affirmed. The service which a city undertakes to render in removing garbage is not one undertaken for special advantage or profit to the city, nor an act of strictly corporate concern. It is a service performed in the interest of the public at large. In this regard it is like that which it renders through the health department of its government, and in fact it is a matter which appertains to the general health and comfort of the public. Kuehn v. City of Milwaukee (Wis.) 65 N. W. 1031. An exception in this class of cases is when, in the exercise of such functions, a nuisance is created or maintained. The city, under the facts here, was not liable for the negligent or willful acts of its officers and employés. Affirmed.

1 Rehearing denied January 30, 1901, and writ of error denied by supreme court.

HOUSTON & T. C. R. CO. v. MILAM. (Court of Civil Appeals of Texas. Jan. 30, 1901.)

MASTER AND SERVANT-INJURY TO SERVANT -RAILROADS YARD ENGINES - DEFECTIVE FOOTBOARD-TRIAL-INSTRUCTIONS.

1. A servant sued his master for injuries alleged to have been caused by stepping on a projecting footbolt on the footboard of a locomotive, and the court refused to charge that, if the jury believed that plaintiff was not injured by stepping on the projecting footbolt, there should be a verdict for defendant without regard to any other issue, without regard to whether he attempted to get on the engine and fell either from a misstep or from stepping on some other substance upon the footboard, and that, if they did not believe the accident was caused by the defective bolt, as charged in the complaint, the verdict should be for defendant. Held, that the refusal was not prejudicial error, the court having charged that, if there was no projecting bolt on the footboard of the engine, or if the defendant was not guilty of negligence in reference to the bolt, or if the condition of the bolt was not the proximate cause of the plaintiff's fall, they should return a verdict for defendant.

2. A yard master was injured in attempting to board a moving locomotive, and in an action for the injuries the court refused to charge that, if the jury believed that a prudent person situated as plaintiff was would not have attempted to board the engine on account of the rate at which it was moving, and if such attempt was negligence, and but for such negligence, the injury would not have OCcurred, there should be a verdict for defendant. Held, that the refusal was not prejudicial error in view of the fact that the court charged that the jury would inquire whether plaintiff was guilty of negligence in attempting to get on the engine while it was moving at the rate of speed shown by the testimony, and, if so, whether such negligence contributed to his injury; and that, if such negligence did contribute to the injury, there should be a verdict for defendant, notwithstanding they might find defendant was guilty of negligence which contributed to the injury.

Collard, J., dissenting.

On rehearing. Affirmed.

For former opinion, see 58 S. W. 735.

KEY, J. After due consideration, a majority of the court has reached the conclusion that error was committed in the Judgment of reversal heretofore rendered by this court. The judgment was reversed because the trial court refused to give special charges Nos. 5 and 9, requested by appellant. No. 5 reads as follows: "If you believe from the evidence that plaintiff in this cause was not injured by stepping upon a projecting footbolt on the engine referred to in the testimony at the time of the alleged accident, you will return your verdict for the defendant, without regard to any other issue in the case, and without regard to whether or not you believe he did attempt to get upon said engine, and did fall, either from making a misstep or from stepping upon some other substance upon the footboard; and if you do not believe that the accident was caused by a projecting bolt on said footboard, substantially as charged in the plaintiff's petition, you will return your verdict for the defendant." No. 9

The

reads thus: "If you believe from the evidence in this case that an ordinarily prudent person situated as the plaintiff was situated at the time of and just prior to the accident for which he sues in this cause would not have attempted to board said engine on account of the rate at which it was moving, but would, as the uncontradicted evidence shows that he had a right to do, have signaled the same to slow down before he attempted to board it, and that such attempt, if any, to board said engine while moving through the yards, on account of the rate of speed at which it was moving, was negligence on his part, and that, but for such negligence on his part, said accident would not have occurred, then you will return your verdict for the defendant." The plaintiff, in his petition, alleged that the fall which resulted in his injuries was caused by a projecting bolt on the footboard of the engine, and charged the defendant with negligence in permitting the bolt to get out of repair and project above the level of the footboard. The defendant did not aver in its answer that the plaintiff's fall was caused by his stepping on any other substance. The answer contained a general denial, and alleged that the plaintiff's injuries were the result of his contributory negligence; the averments in this regard being, in substance, that he recklessly, carelessly, and negligently attempted to board the engine while it was running at a high rate of speed. eighth and ninth paragraphs of the charge given by the court read as follows: "(8) If the jury shall find that the plaintiff was act ing in the course of his duties as yardmaster in attempting to get on said engine, and that, therefore, it was the duty of defendant to exercise care, as aforesaid, to see that engines thus admitted to its yards were in a reasonably safe condition for the use of its employés, the jury will then inquire: First. Was there a bolt projected above the surface of said footboard on said engine in such a manner as to be calculated to cause persons who stepped on said board while the engine was in motion to fall, and did the projection of this bolt render such footboard unsafe for persons to get on while the engine was moving? Second. Did the defendant company fail to exercise such care as a prudent person should exercise under the surrounding circumstances to see that said engine footboard was in a reasonably safe condition before permitting it to come into the yards of defendant? Third. Was the condition of the bolt in question the proximate cause of plaintiff's fall? (9) If you fail to find an affirmative answer to any one of the foregoing questions, you will return a verdict for the defendant. If you shall find in the affirmative on each of the foregoing questions, then you will inquire further whether the plaintiff was guilty of negligence in attempting to get on said engine in the manner in which he did, while it was moving at rate of speed shown by the testimony, and, if he was negligent in this

particular, whether such negligence contributed proximately to his injury; and if you shall find that he was guilty of negligence which contributed to his injury, you will re turn a verdict for the defendant, notwithstanding you may have also found that the defendant was guilty of negligence which also contributed proximately to plaintiff's injury." Special charge No. 5, if given, would have instructed the jury, with some reiteration, that, in order for the plaintiff to recover, they must believe from the evidence that there was a projecting bolt on the footboard of the engine at the time of the accident, and that it was the efficient cause of the plaintiff's fall and resulting injuries. It cannot be denied that the pleadings and evidence raised these issues; and, if there was no projecting bolt on the footboard of the engine, or if such bolt was not the proximate or efficient cause of the plaintiff's injuries, he was not entitled to recover. But we are of the opinion that the eighth paragraph and first sentence of the ninth paragraph of the court's charge, as set out above, submitted these issues to the jury as directly and specifically and as favorably for appellant as they would have been submitted had the refused instruction been given. In fact, the court's charge was more accurate than the one refused. The former propounded three questions to the jury, which, in substance, were: (1) Was there a projecting bolt on the footboard of the engine? (2) Was the defendant guilty of negligence in reference to such bolt? And (3) was the condition of the bolt the proximate cause of the plaintiff's fall? The charge then instructed the jury specifically, if they failed to find an affirmative answer to any one of these questions, to return a verdict for the defendant. These questions include those embodied in special charge No. 5, and, if the latter had been given, it would have added nothing to the court's charge, and would merely have reiterated what had already been done. It is not necessary to cite authorities in support of the proposition that it is not error to refuse a charge the substance of which has already been given. In reference to special charge No. 9, it will be noted that it embraces two theories of contributory negligence. One is the failure to signal the engine to slacken its speed, and the other the attempt to board the engine running at the rate of speed disclosed by the evidence. The failure to signal the engine to slow down is not pleaded by appellant as a ground of negligence, and therefore the special charge in question was properly refused. As to the ground of contributory negligence pleaded by appellant, the court's charge, as set out above, was as full and specific as the special charge referred to. We do not think the Shieder Case, 88 Tex. 156, 30 S. W. 902; the McGlamory Case, 89 Tex. 635, 35 S. W. 1058; the Rogers Case (Tex. Sup.) 40 S. W. 959; nor the Patterson Case (Tex. Civ. App.) 48 S. W. 747,-supports appellant's contention as to either of the special