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as there was no connection between the & Co. to the bank. These two witnesses plaintiff and Hay. “The Court: Well, the agree as to the time the indorsement was extestimony has been admitted with qualifyingecuted; that is, the 16th of December, 1901. instructions, and the motion is overruled.' In January, 1902, the note was sent to a bank

“Upon cross-examination the witness testi- in Dallas by the Security Bank of Minnesota fied as follows: 'Hay took the note out of for collection, and the evidence tends to show bis pocket like I illustrated a while ago. He that at that time it bad this indorsement might have had a wallet, but he took it out upon it: “Pay to the order of any bank or like a man ordinarily would, and the note banker.” This was signed by the Security was on the top. I know Mr. Nigro, of Nigro Bank of Minnesota. After the note was re& Co., very well. As he turned the papers ceived by the Dallas bank, it was presented over, I said, “By the way, do you represent to Nigro & Co., who declined to pay it, beSigro & Co.?” and he said, “Yes, sir." It is cause it was not due, as evidenced by the my recollection that he had the note in his terms of the written contract entered into behand. I knew the note. I had seen it before. tween Nigro & Co. and Hall & Co.; and the It was at the bank. I think it was at the inference from the record is that at the time bank that Mr. Nigro and I saw it. They sent of such refusal of appellants the potatoes had the note down here for collection before it not arrived at Dallas. Nigro testified that was due, and we went over and instructed he bad examined the note sued on in evithe bank to send it back with the statement dence. That the first time that he saw the that it was not due. I can't say when with note after he signed it was some time in Janreference to dates. I know it was in the uary, the first time it was presented. At that month of March, for the campaign was going time it was at the American National Bank. on bere then, and I think Mr. Leachman per- (This refers to the American National Bank baps wrote my name on one of Mr. Vince of Dallas, who held the note for collection.) Pace's cards, who was a candidate. I am at- It was there for collection. He examined the torney for Mr. Nigro, and was at that time.' note at the time. . "It may have had one in.

"To which action of the court in so limiting dorsement on it. I did not examine the inthe testimony of said witness in its applica- dorsements closely, but I knew it did not tion to the issues the defendants in open have all the indorsements it has now. The court excepted, and here tender their bill of bank presented it to me for collection. I reexceptions to the action of the court, and re- fused to pay it. The reason I refused at the quest that the same be allowed and fled, time is that it was not due. The contract which is accordingly done."

which was executed December 24, 1901, proTo fully understand the questions raised vided that the note would become due 50 days and presented in the bill of exceptions, it is after that date.” He further states: "I nernecessary to state substantially the evidence er received any notice from anybody concernof certain witnesses as appears in the record, ing this note, other than the notices received in proof of the issues involved in this case. from the bank here. It was sent here for colThe appellee bank contends that it acquired lection. I never received any notice from the the note as collateral security for money loan- plaintiff in this case that it owned the note. ed Hall & Co. prior to the maturity of the I saw the note in the American National note, without any notice of any breach of the Bank, as above stated. It had one indorsecontract upon which the note was based, or ment on it, but not all the indorsements that any failure of its consideration. As stated it has at the present time. I think that inbefore, the appellants contend that the bank dorsement was from one bank to another." acquired the note after maturity; and fur- He further testified that he notified Hall & ther that the transfer was pretended to be Co. that the potatoes were not of the quality made before maturity, in order to deprive the contracted for, and that in the latter part of appellants of their right to urge breach of February or first of March, 1902, Hall & Co. contract and the failure of consideration of sent their agent Ilay to Dallas (the same man the note. There is some evidence bearing on mentioned in the bill of exceptions), to whom the question as to whether the note was appellant turned over the potatoes, and they transferred to the appellee by Hall & Co. were received by Hay. The note at the time prior or subsequent to its maturity. The vice of trial had two other indorsements upon it, president of the bank, and the official who signed by the Security Bank of Minnesota, had charge of the affairs of the bank of this similar to the first indorsement made by that character, testified that the note was in- bank, to the effect, “Pay to the order of any dorsed to the bank by Hall & Co. on the 16th bank or banker." Witness Pondrom, one of of December, 1901, and it was accepted by the the officials of the American National Bank bank as collateral security for money then of Dallas, testified that the indorsements that loaned to Hall, without any notice or knowl- appear on the note were on the same as it edge upon the part of the bank of any defect was received by the bank from time to time in the paper, or of any breach of the con- for collection; that he was acquainted with tract upon which it was based. Hall & Co. the customs generally obtaining among banks, testified to the same effect as to the transfer and that there is a difference in the method to the bank and as to the time it was in- of sending out paper for collection for their dorsed. The note has an indorsement by Hall own account and that of their customers. Ordinarily, paper sent out on account of cus. that he held possession as the agent of Hall tomers is sent "No protest,” while paper that & Co. Although the bank may claim that it represents cash to the bank would ordinarily received the note, and that the same was inbe sent subject to protest. The instructions dorsed to it prior to its maturity, the jury accompanying this paper were not to protest. were not absolutely required to believe its Witness Harrison, an official of appellee testimony upon this subject; and, if Hall & Bank of Minnesota, contradicts the testimony Co. had possession of the note in Januof witness Pondrom as to the custom with ary, after the same had matured, such posreference to instructions to protest or not to session could have been considered for what protest. Witness Hall, the party from whom it was worth, tending to establish the fact the appellant purchased potatoes, and who is that it was not, on the 16th of December, mentioned as the payee in the note, testified 1901, delivered to the bank and indorsed by that on the 16th of December, 1901, he in- Hall & Co. Now, if Hay had possession as dorsed the note to the appellee bank, and that agent for Hall & Co., his possession should the note since that time has never been in be given the same effect as if possession had his possession or in his control, nor been in been held by Hall & Co. in person.

Such possession of any person for him since that possession is consistent with the theory addate; that he did not deliver the note to vanced by the witness Nigro, wherein he tesHay or any other person except the bank ; tified to the fact substantially that the note that S. L. Hay was once in his employ; that did not have an indorsement upon it by Hall he quit working for him in May, 1903; that & Co. to the appellee bank when he saw it in in the latter part of February, 1902, he sent Dallas in January, 1902. It is true that Hay Hay to Dallas, Tex., to examine the potatoes made no express statement in his interview shipped Nigro & Co., and ascertain why they with Rasbury as to an ownership of the note would not accept them. Hay testified that he in Hall & Co.; but his possession of the note, never had possession of the note, and did not together with the statement to the effect that have possession at the time testified to by the he desired suit brought thereon by Hall & witness Rasbury, as shown by the bill of ex- Co. against the appellants, was some eviceptions; that he was sent to Dallas by Hall dence, if admissible, tending to show that & Co. to try and get Nigro to accept the po- Hall & Co. were the claimants of the note, tatoes, and that he was instructed by Hall and were asserting ownership in the same. & Co, to select a lawyer that could be recom- And such evidence of possession was further mended to the appellee bank. He admits go- admissible in contradiction of the evidence ing into Rasbury's office, and said he told of the bank tending to show that the bank him who he was and what he wanted, and had never, since the 16th day of December, asked him the question if he was Nigro's at- 1901, parted with possession of the note, extorney. Rasbury answered that he was, and cept when it was sent to the bank at Dallas nothing further was said about the case. He for collection. Now, instructions to the jury testified that this conversation occurred some that the statements made by Hay when he time between February 12 and March 10, had actual possession of the note might be 1902. The witness Harrison, the officer of considered merely that the statements were the appellee bank, testified that Hall & Co. made, but that the statements could not be never had the note since December 16, 1901; taken as true, bad practically the effect of that the note was in possession of the bank, destroying the value of Hay's statements as except when sent to the Dallas bank for col- evidence. His statements accompanying the lection. The note, as offered in evidence, also exhibition of the note to Rasbury were a part had this indorsement: “Pay to the Security of the same transaction, the tendency of Bank of Minnesota, Minneapolis, Minnesota, which was to establish the fact that his posor order," signed, “S. H. Ilall & Company." session of the note was for the benefit of

This is a sufficient statement of the evi- Hall, and that he desired action thereon for dence to indicate that, in our opinion, the his principal. The limiting and qualifying trial court erred in limiting the effect of the effect upon the conduct and statements of statements made by the witness Hay to Ras- Hay, as testified to by Rasbury, was certainbury, as shown in the testimony of Rasbury ly calculated to influence the jury to believe as set out in the bill of exceptions. Hay's that slight weight, if any, should be given to statement would not be admissible to estab- the evidence of Rasbury in detailing what lish the fact that he was the agent of Hall & occurred in his interview with Hay. This Co.; but his agency, so far as investigating evidence, it is true, might be slight, but we the condition of the potatoes and requiring are of the opinion that the jury were authorVigro & Co. to receive them and pay for the ized to consider it in connection with the same, is abundantly established by other evi- other evidence in the record bearing upon the dence. He was there for this purpose as the question whether or not the indorsement or agent of Hall & Co., and if, at the time, he transfer to the bank was truly made at the had possession of the note, which Rasbury time claimed by the appellee, or that it came testifies to be the case, notwithstanding the into possession of the same after maturity of denial of Hall & Co. and of Hay, the jury the note. For the error stated, the judgment would be authorized to consider such posses- is reversed, and the cause remanded. sion as evidence bearing upon the question Reversed and remanded,

resenting him in carelessly handling said cattle, and bad treatment of same by plaintiff; that, if the cattle were injured, such injuries resulted from their inherent vice, and from their hooking and injuring one another; that the injuries to the cattle, and the death of some, were caused by plaintiff negligently treating them to an application of Beaumont oil at Gainesville, and by cold weather and starvation. The trial of the case, which was before a jury, resulted in a judgment in favor of plaintiff for $1,449.75.

MISSOURI, K. & T. RY. CO. OF TEXAS v.

RUSSELL.* (Court of Civil Appeals of Texas. June 14,

1905.) 1. CARRIERS — INJURIES TO CATTLE NEGLIGENCE-EVIDENCE.

In an action for injuries to cattle in transit. evidence held to support a verdict finding defendant carrier guilty of negligence. 2. SAJE-STATEMENTS OF AGENT-ADMISSION AGAINST INTEREST.

In an action against a carrier for injuries to cattle in transit, a statement made by defendant's conductor to plaintiff during the transportation, in reply to a question why he started out with the engine drawing the train, that they had to go with whatever they started out with, and admitting that he knew that he could not get far with such engine, was admissible as a statement against interest. 3. SAME-PREJUDICE.

Where, in an action for injuries to cattle in transit, the undisputed evidence showed that the engine drawing the train was defective, and unable, from the time it started until it was relieved by another engine, to efficiently draw the train, and that by reason of its defective condition the cars were so jerked about as to cause the injuries to the cattle, defendant was not prejudiced by the admission of a statement by its conductor to plaintiff during the transportation that he knew he could not get far with the engine drawing the train. 4. SAME – EVIDENCE - OBJECTIONS-SCOPEAPPEAL.

Where, in an action for damages to cattle, evidence of a witness on the issue of damages was objected to on the ground that the witness was testifying to his opinion and not as to facts, such objection did not sustain the contention, first made on appeal, that it was error for the court to permit the witness to testify what the market value of the cattle would be if in good condition, for the reason that defendant was pot responsible for the depreciation in weight and appearance of the cattle naturally resulting from being transported.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Action by George H. Russell against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Eldridge & Midkiff, for appellant. Culp & Giddings, for appellee.

Conclusions of Fact. In the latter part of October, 1902, the plaintiff shipped 181 head of high-grade Durham cattle from Taylor to Washburn, Tes. En route to their destination they were to be transported over defendant's road from Taylor to Wichita Falls, Tex., and, from there on, by the Ft. Worth & Denver Railway Company. They were delivered by plaintiff to defendant at Taylor in good condition, and defendant railway company entered into a written contract with him to carry them from there over its line of road to Wichita Falls. The contract limited its liability to damages occurring on its own line of railway.

When the cattle reached Gainesville, Tex., they were dipped in Beaumont oil for the purpose of cleaning them from ticks, a method recommended and approved by United States authorities. The evidence shows that in dipping, or in making the application of oil, they were carefully handled, and in no way injured. The cattle remained at Gainesville 10 or 12 days, and were in good flesh and first-class condition, with the exception of a calf, worth $25, which had been killed before they arrived there. The cattle were reloaded on defendant's train at Gainesville about 9 or 10 o'clock at night, and reached Muenster, a distance of about 14 miles, next morning about 3:30 o'clock.

The evidence shows that the engine which pulled the train there from Gainesville was in a bad condition, and leaked so as to render it so weak that it could hardly draw the train. For this reason it was continually backing so as to get a start, and suddenly pulling ahead, causing a jerking of the cars which frequently threw a great many of the cattle down, bruising and injuring them and crippling some. This was continually occurring between Gainesville and Muenster. When the train reached that place it had to wait there two or three hours for another engine to carry it to Wichita Falls. When it reached there a great many of the cattle were down. They were car, ried from there over the Ft. Worth & Denver to Washburn, their destination. While being transported by that road from Wichita Falls there was no unusual jerking the cars, or rough handling of the cattle, nor any delay, or anything reasonably calculated to injure them. When they arrived at their des

NEILL, J. This suit was brought by appellee against appellant to recover damages to a shipment of cattle. T'he plaintiff alleged that the cattle were injured, while being transported by defendant from Gainesville to Wichita Falls, by being “subjected to great, unnecessary, and unusual violence or rough treatment, occasioned by defendant's agent in operating its train, and to the defective and worn-out condition of its engine, cars, and machinery, and other causes unknown to plaintiff and peculiarly within the knowledge of defendant." The defendant, after a general denial, answered that the alleged injuries to the cattle were caused by the negligence of plaintiff and those rep

*Rehearing denied July 1, 1905, and writ of error denied by Supreme Court.

tination they were in a very bad condition, ficiently draw the train, and that by reason many of them being badly bruised, some of its defective condition the cars in which with their hips knocked down and eyes the cattle were loaded were so jerked about knocked out; and on account of their inju- as to cause their injuries. The defendant ries a very valuable Durham bull died next was a common carrier, and, as such, is reday, and 8 cows and 15 yearlings died in garded by the law as a practical insurer of consequences of the injuries occasioned them the safe carriage of the goods against all by defendant's negligence, within 15 days loss of whatever kind, with certain excepafterwards. A large per cent. of those that tions; the only one of which having any apdid not die were more or less injured.

plication to this case is such losses as might The evidence is sufficient to show that the arise from the inherent nature of live stock. damages caused plaintiff by the negligence It not being shown that the injury to the cat. of defendant in transporting his cattle over tle arose from their nature, and it appear. its line of road amounted to $1,419.75, and ing that defendant, in furnishing a defective that none of this damage was caused or re- engine, failed to provide all suitable means sulted in any way from any of the acts or for their transportation, and that such failthings pleaded by defendant in its answer. ure was the cause of the damage, the testi

mony which is made the subject of this asConclusions of Law.

signment could in no way have prejudiced 1. Our conclusions of fact dispose of the appellant. Hutchinson on Carriers, 88 170afirst, second, and third assignments of er- 218; Tex. & P. Ry. Co. v. Snyder (Tex. Civ. ror, which complain of the insufficiency of App.) 86 S. W. 1041. the evidence to support the verdict. If the 3. The witness F. L. Hill, having testified testimony of the plaintiff and his witnesses that he was acquainted to a certain extent is true (and this was a matter for the jury, with the market value of plaintiff's class of and not for us, to determine), the evidence is cattle at Washburn at the time they arrived amply sufficient to show that the injuries in- there, was then asked by plaintiff's counsel flicted upon the cattle were caused by the to state what in his opinion was the fair negligence of the defendant ou its line of market value of the cattle in question at road, and that the amount of damages that place in good condition, and answered, found by the jury accruing to plaintiff by "I think $75 for those cows would have been reason of such negligence is not excessive. very reasonable." The question and answer

2. The plaintiff testified that at Muenster of the witness were objected to by defendant he asked the conductor why he started out on the ground “that the witness was testifywith that engine, and that he replied they | ing to his opinion, and not as to facts." The had to go with whatever they started out admission of the testimony is assigned as erwith, and admitted that he knew that he ror, and the proposition asserted is that "it could not get far with it. This was object- was error for the court to permit the witness ed to by defendant “on the ground that the to testify what the market value of said catconversation with the conductor was hear- tle would be if in good condition, for the reasay." The court overruled the objection, son that defendant is not responsible for the and, to its action in doing so and in admit- depreciation in weight and appearance of ting the testimony, the defendant excepted cattle naturally resulting from being transand has assigned error. We are inclined to ported." It will be observed that the objecthink that this assignment is not well taken. tion here urged to the admission of the testi. The conductor was the agent of defendant in mony is different from that made in the trial charge of the train when he made the state- court. The rule is, when, on appeal, an asment, and his knowledge of the condition of signment of error is predicated upon the adthe engine when it started out, it seems to mission of testimony, only such objections as us, was the knowledge of his principal, and were presented in the trial court and stated his admission that he knew the condition of in the bill of exceptions will be considered. the engine was admissible in evidence as an City of Austin v. Forbis (Tex. Civ. App.) 86 admission against interest. Telephone Co. v. S. W. 31; T. & P. Ry. Co. v. Birdwell (Tex. Prince (Tex. Civ. App.) 82 S. W. 327; Stand- Civ. App.) 86 S. W. 1068. As, therefore, the efer v. Aultman (Tex. Civ. App.) 78 S. W. proposition cannot be considered, and as it 552; Cooper v. Brittain (Tex. Civ. App.) 74 is the only one advanced under the assignS. W. 91; Plotz v. Miller (Ky.) 51 S. W. 176. ments of error, it will be overruled. But if it should be conceded that the court This also disposes of appellant's fifth, sixth, should have excluded such testimony upon and seventh assignments of error, which, like the ground that it was hearsay, we are un- this one, interpose for the first time on apable to see how the defendant was injured peal objections to the admission of testiby it. The undisputed evidence shows that the mony different from what the bills of exengine was defective, and unable, from the ception show were made in the court below. time it started from Gainesville until it was There is no error requiring the reversal of relieved by another engine at Muenster, to ef- the judgment, and it is affirmed.

described in plaintiff's petition as their honeDIFFIE V. THOMPSON et al.

stead, with their family, at that time, and (Court of Civil Appeals of Texas. June 14,

had no other homestead; that they were 1905.)

citizens of Red River county at that time,

and that said land was their homestead at. 1. VENDOR AND PURCHASER-RESERVATION OF VENDOR'S LIEN-EFFECT ON TITLE.

that time they lived upon it and then ocWhere a deed expresses as a part of the

cupied it as their homestead; that they deconsideration thereof the assumption by the sired to sell the same, and that they were grantee of vendors' lien notes owed by, and de

ignorant people, and did not understand the scribed in the deed to, the grantor, and reserves a lien on the land to secure their payment, the

legal purport of legal instruments, and that superior title to the land remains in the gran

the plaintiff W. 0. Diffie came to them, and tor until the notes thus assumed are paid. told them, if they would execute and deliver 2. SAME - FAILURE TO PAY NOTES-CONVEY- to him a power of attorney, he would sell ANCE TO HOLDER-RIGHTS OF HOLDER.

said land for them, and that they agreed to Where a grantee fails to comply with his promise to pay past-due notes of the grantor

do so; that he then made or caused to be which he assumed, and to secure the payment made the instrument described in plaintiff's of which a lien was reserved on the land, the petition as of date December 5, 1898, which vendor may convey the land to the holder of the notes; and the latter thus acquires all the

he fraudulently represented to them to be a rights of the vendor, together with the right to

power of attorney, so that he could sell said hare the notes paid before the superior right to land for them; that they relied on the statethe land can vest in the grantee, who assumed ments so made by the said W. 0. Diffie, and, the same.

believing them to be true, and that he was 3. SAME-RIGHT TO POSSESSION-FAILURE TO DISCHARGE NOTES.

acting in good faith and with an honest inA grantee of land, who has assumed the tent, and not knowing that the said Diffie payment of vendor's lien notes, has no right, was setting up any claim to said land, they unless he pays the notes, to a judgment for the

did on the 28th day of August, 1900, sell land or the possession thereof, in trespass to try title against the holder of the notes, to

and convey by general warranty deed to J. whom the grantor has conveyed the land.

B. Whitfield said land, not knowing that Error from District Court, Red River

the instrument held by said Diffie showed on County; Ben H. Denton, Judge.

its face that it was a deed, but, believing it Action by W. 0. Diffie against W. H.

to be only a power of attorney, as it was Thompson and others. There was a judg

understood to be, they conveyed said land to

the said Whitfield; and that the said Diffie, ment for defendants, and plaintiff brings error. Affirmed.

in order to carry out his nefarious plans, and

to cheat, swindle, and defraud these defendW S. Thomasfor plaintiff in error. ants and others who might buy said land, did Chambers, Doak & Kennedy, for defendants not put said purported deed on record until in error.

after the deed was made by these defendants

to the said Whitfield and placed on record in EIDSON, J. This suit was brought in the the county clerk's office, and then for the first court below by the plaintiff in error against

time he claimed that said instrument was a the defendants in error in the form of an deed, and endeavored by such means to exaction of trespass to try title to a tract of tort money from these defendants and the land described in his petition. Defendants in purchasers of said land; and these defenderror Hearn and Thompson answered by gen- ants say that no consideration whatever was eral exception, general denial, plea of not paid by said Diffie for said land, and the guilty, and a special answer setting up that same was without consideration, and that on August 28, 1900, J. B. Whitfield purchased purported deed casts a cloud upon the title the land in controversy from J. Long and to said land, and pray that said deed may wife, M. J. Long, and received a general war- be canceled, and all clouds removed, and for ranty deed therefor; that afterwards, on De- costs,” etc. The case was tried by the court cember 31st, Whitfield and wife, M. J. Whit- without a jury, and judgment rendered for field, conveyed to said Hearn, who acted for all the defendants and against the plaintiff himself and the said Thompson, by a general for costs. warranty deed, the land in controversy-and The court below filed findings of fact and prayed that said Whitfield and wife and J. conclusions of law. Its second finding of fact Long and wife be made parties to the suit, is as follows: "(2) I find that on December and, in the event plaintiff recovered judg. | 5, 1898, J. Long and wife deeded the land in ment against them, that they have judgment question to plaintiff, W. 0. Diffie, and that orer against said Whitfield and Long upon the consideration paid and agreed to be paid their respective warranties. Long and wife for the same was as follows, to wit: The answered by general denial, plea of not assumption of two promissory notes describguilty, and by a special answer, alleging in ed in a deed from J. W. Bailey et al. to J. substance as follows: "And further answer- Long, which were a vendor's lien on the land ing herein, these defendants say that they in question, and which notes were then ownare husband and wife, and were such hus- ed by J. B. Whitfield, and the assumption of band and wife on the 5th day of December, a debt of $35 due by Long to one Upchurch, 1898, and that they were living on the land and $5 paid Mrs. Long, wife of J. Long, and

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