as there was no connection between the plaintiff and Hay. The Court: Well, the testimony has been admitted with qualifying instructions, and the motion is overruled.'

"Upon cross-examination' the witness testified as follows: 'Hay took the note out of his pocket like I illustrated a while ago. He might have had a wallet, but he took it out like a man ordinarily would, and the note was on the top. I know Mr. Nigro, of Nigro & Co., very well. As he turned the papers over, I said, "By the way, do you represent Nigro & Co. ?" and he said, "Yes, sir." It is my recollection that he had the note in his hand. I knew the note. I had seen it before.

It was at the bank. I think it was at the bank that Mr. Nigro and I saw it. They sent the note down here for collection before it was due, and we went over and instructed the bank to send it back with the statement that it was not due. I can't say when with reference to dates. I know it was in the month of March, for the campaign was going on here then, and I think Mr. Leachman perhaps wrote my name on one of Mr. Vince Pace's cards, who was a candidate. I am attorney for Mr. Nigro, and was at that time.'

"To which action of the court in so limiting the testimony of said witness in its application to the issues the defendants in open court excepted, and here tender their bill of exceptions to the action of the court, and request that the same be allowed and filed, which is accordingly done."

To fully understand the questions raised and presented in the bill of exceptions, it is necessary to state substantially the evidence of certain witnesses as appears in the record, in proof of the issues involved in this case. The appellee bank contends that it acquired the note as collateral security for money loaned Hall & Co. prior to the maturity of the note, without any notice of any breach of the contract upon which the note was based, or any failure of its consideration. As stated before, the appellants contend that the bank acquired the note after maturity; and further that the transfer was pretended to be made before maturity, in order to deprive the appellants of their right to urge breach of contract and the failure of consideration of the note. There is some evidence bearing on the question as to whether the note was transferred to the appellee by Hall & Co. prior or subsequent to its maturity. The vice president of the bank, and the official who had charge of the affairs of the bank of this character, testified that the note was indorsed to the bank by Hall & Co. on the 16th of December, 1901, and it was accepted by the bank as collateral security for money then loaned to Hall, without any notice or knowledge upon the part of the bank of any defect in the paper, or of any breach of the contract upon which it was based. Hall & Co. testified to the same effect as to the transfer to the bank and as to the time it was indorsed. The note has an indorsement by Hall

& Co. to the bank. These two witnesses agree as to the time the indorsement was executed; that is, the 16th of December, 1901. In January, 1902, the note was sent to a bank in Dallas by the Security Bank of Minnesota for collection, and the evidence tends to show that at that time it had this indorsement upon it: "Pay to the order of any bank or banker." This was signed by the Security Bank of Minnesota. After the note was received by the Dallas bank, it was presented to Nigro & Co., who declined to pay it, because it was not due, as evidenced by the terms of the written contract entered into between Nigro & Co. and Hall & Co.; and the inference from the record is that at the time of such refusal of appellants the potatoes had not arrived at Dallas. Nigro testified that he had examined the note sued on in evidence. That the first time that he saw the note after he signed it was some time in January, the first time it was presented. At that time it was at the American National Bank. (This refers to the American National Bank of Dallas, who held the note for collection.) It was there for collection. He examined the note at the time.. "It may have had one indorsement on it. I did not examine the indorsements closely, but I knew it did not have all the indorsements it has now. The bank presented it to me for collection. I refused to pay it. The reason I refused at the time is that it was not due. The contract which was executed December 24, 1901, provided that the note would become due 50 days after that date." He further states: "I never received any notice from anybody concerning this note, other than the notices received from the bank here. It was sent here for collection. I never received any notice from the plaintiff in this case that it owned the note. I saw the note in the American National Bank, as above stated. It had one indorsement on it, but not all the indorsements that it has at the present time. I think that indorsement was from one bank to another." He further testified that he notified Hall & Co. that the potatoes were not of the quality contracted for, and that in the latter part of February or first of March, 1902, Hall & Co. sent their agent Hay to Dallas (the same man mentioned in the bill of exceptions), to whom appellant turned over the potatoes, and they were received by Hay. The note at the time of trial had two other indorsements upon it, signed by the Security Bank of Minnesota, similar to the first indorsement made by that bank, to the effect, "Pay to the order of any bank or banker." Witness Pondrom, one of the officials of the American National Bank of Dallas, testified that the indorsements that appear on the note were on the same as it was received by the bank from time to time for collection; that he was acquainted with the customs generally obtaining among banks, and that there is a difference in the method of sending out paper for collection for their own account and that of their customers.

Ordinarily, paper sent out on account of customers is sent "No protest," while paper that represents cash to the bank would ordinarily be sent subject to protest. The instructions accompanying this paper were not to protest. Witness Harrison, an official of appellee Bank of Minnesota, contradicts the testimony of witness Pondrom as to the custom with reference to instructions to protest or not to protest. Witness Hall, the party from whom the appellant purchased potatoes, and who is mentioned as the payee in the note, testified that on the 16th of December, 1901, he indorsed the note to the appellee bank, and that the note since that time has never been in his possession or in his control, nor been in possession of any person for him since that date; that he did not deliver the note to Hay or any other person except the bank; that S. L. Hay was once in his employ; that he quit working for him in May, 1903; that in the latter part of February, 1902, he sent Hay to Dallas, Tex., to examine the potatoes shipped Nigro & Co., and ascertain why they would not accept them. Hay testified that he never had possession of the note, and did not have possession at the time testified to by the witness Rasbury, as shown by the bill of exceptions; that he was sent to Dallas by Hall & Co. to try and get Nigro to accept the potatoes, and that he was instructed by Hall & Co. to select a lawyer that could be recommended to the appellee bank. He admits going into Rasbury's office, and said he told him who he was and what he wanted, and asked him the question if he was Nigro's attorney. Rasbury answered that he was, and nothing further was said about the case. He testified that this conversation occurred some time between February 12 and March 10, 1902. The witness Harrison, the officer of the appellee bank, testified that Hall & Co. never had the note since December 16, 1901; that the note was in possession of the bank, except when sent to the Dallas bank for collection. The note, as offered in evidence, also had this indorsement: "Pay to the Security Bank of Minnesota, Minneapolis, Minnesota, or order," signed, "S. H. Hall & Company."

This is a sufficient statement of the evidence to indicate that, in our opinion, the trial court erred in limiting the effect of the statements made by the witness Hay to Rasbury, as shown in the testimony of Rasbury as set out in the bill of exceptions. Hay's statement would not be admissible to establish the fact that he was the agent of Hall & Co.; but his agency, so far as investigating the condition of the potatoes and requiring Nigro & Co. to receive them and pay for the same, is abundantly established by other evidence. He was there for this purpose as the agent of Hall & Co., and if, at the time, he had possession of the note, which Rasbury testifies to be the case, notwithstanding the denial of Hall & Co. and of Hay, the jury would be authorized to consider such possession as evidence bearing upon the question

that he held possession as the agent of Hall & Co. Although the bank may claim that it received the note, and that the same was indorsed to it prior to its maturity, the jury were not absolutely required to believe its testimony upon this subject; and, if Hall & Co. had possession of the note in January, after the same had matured, such possession could have been considered for what it was worth, tending to establish the fact that it was not, on the 16th of December, 1901, delivered to the bank and indorsed by Hall & Co. Now, if Hay had possession as agent for Hall & Co., his possession should be given the same effect as if possession had been held by Hall & Co. in person. Such possession is consistent with the theory advanced by the witness Nigro, wherein he testified to the fact substantially that the note did not have an indorsement upon it by Hall & Co. to the appellee bank when he saw it in Dallas in January, 1902. It is true that Hay made no express statement in his interview with Rasbury as to an ownership of the note in Hall & Co.; but his possession of the note, together with the statement to the effect that he desired suit brought thereon by Hall & Co. against the appellants, was some evidence, if admissible, tending to show that Hall & Co. were the claimants of the note, and were asserting ownership in the same. And such evidence of possession was further admissible in contradiction of the evidence of the bank tending to show that the bank had never, since the 16th day of December, 1901, parted with possession of the note, except when it was sent to the bank at Dallas for collection. Now, instructions to the jury that the statements made by Hay when he had actual possession of the note might be considered merely that the statements were made, but that the statements could not be taken as true, had practically the effect of destroying the value of Hay's statements as evidence. His statements accompanying the exhibition of the note to Rasbury were a part of the same transaction, the tendency of which was to establish the fact that his possession of the note was for the benefit of Hall, and that he desired action thereon for his principal. The limiting and qualifying effect upon the conduct and statements of Hay, as testified to by Rasbury, was certainly calculated to influence the jury to believe that slight weight, if any, should be given to the evidence of Rasbury in detailing what occurred in his interview with Hay. This evidence, it is true, might be slight, but we are of the opinion that the jury were authorized to consider it in connection with the other evidence in the record bearing upon the question whether or not the indorsement or transfer to the bank was truly made at the time claimed by the appellee, or that it came into possession of the same after maturity of the note. For the error stated, the judgment is reversed, and the cause remanded. Reversed and remanded.

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. SAME-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 not 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.

NEILL, J. This suit was brought by appellee against appellant to recover damages to a shipment of cattle. The 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*Rebearing denied July 1, 1905, and writ of error denied by Supreme Court.

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.

Conclusions of Fact.

In the latter part of October, 1902, the plaintiff shipped 181 head of high-grade Durham cattle from Taylor to Washburn, Tex. 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

tination they were in a very bad condition, many of them being badly bruised, some with their hips knocked down and eyes knocked out; and on account of their injuries a very valuable Durham bull died next day, and 8 cows and 15 yearlings died in consequences of the injuries occasioned them by defendant's negligence, within 15 days afterwards. A large per cent. of those that did not die were more or less injured.

The evidence is sufficient to show that the damages caused plaintiff by the negligence of defendant in transporting his cattle over its line of road amounted to $1,449.75, and that none of this damage was caused or resulted in any way from any of the acts or things pleaded by defendant in its answer.

Conclusions of Law.

1. Our conclusions of fact dispose of the first, second, and third assignments of error, which complain of the insufficiency of the evidence to support the verdict. If the testimony of the plaintiff and his witnesses is true (and this was a matter for the jury, and not for us, to determine), the evidence is amply sufficient to show that the injuries inflicted upon the cattle were caused by the negligence of the defendant on its line of road, and that the amount of damages found by the jury accruing to plaintiff by reason of such negligence is not excessive.

2. The plaintiff testified that at Muenster he asked the conductor why he started out with that engine, and that he replied they had to go with whatever they started out with, and admitted that he knew that he could not get far with it. This was objected to by defendant "on the ground that the conversation with the conductor was hearsay." The court overruled the objection, and, to its action in doing so and in admitting the testimony, the defendant excepted and has assigned error. We are inclined to think that this assignment is not well taken. The conductor was the agent of defendant in charge of the train when he made the statement, and his knowledge of the condition of the engine when it started out, it seems to us, was the knowledge of his principal, and his admission that he knew the condition of the engine was admissible in evidence as an admission against interest. Telephone Co. v. Prince (Tex. Civ. App.) 82 S. W. 327; Standefer v. Aultman (Tex. Civ. App.) 78 S. W. 552; Cooper v. Brittain (Tex. Civ. App.) 74 S. W. 91; Plotz v. Miller (Ky.) 51 S. W. 176. But if it should be conceded that the court should have excluded such testimony upon the ground that it was hearsay, we are unable to see how the defendant was injured by it. The undisputed evidence shows that the engine was defective, and unable, from the time it started from Gainesville until it was relieved by another engine at Muenster, to ef

ficiently draw the train, and that by reason of its defective condition the cars in which the cattle were loaded were so jerked about as to cause their injuries. The defendant was a common carrier, and, as such, is regarded by the law as a practical insurer of the safe carriage of the goods against all loss of whatever kind, with certain exceptions; the only one of which having any application to this case is such losses as might arise from the inherent nature of live stock. It not being shown that the injury to the cattle arose from their nature, and it appearing that defendant, in furnishing a defective engine, failed to provide all suitable means for their transportation, and that such failure was the cause of the damage, the testimony which is made the subject of this assignment could in no way have prejudiced appellant. Hutchinson on Carriers, §§ 170a218; Tex. & P. Ry. Co. v. Snyder (Tex. Civ. App.) 86 S. W. 1041.

3. The witness F. L. Hill, having testified that he was acquainted to a certain extent with the market value of plaintiff's class of cattle at Washburn at the time they arrived there, was then asked by plaintiff's counsel to state what in his opinion was the fair market value of the cattle in question at that place in good condition, and answered, "I think $75 for those cows would have been very reasonable." The question and answer of the witness were objected to by defendant on the ground "that the witness was testifying to his opinion, and not as to facts." The admission of the testimony is assigned as error, and the proposition asserted is that "it was error for the court to permit the witness to testify what the market value of said cattle would be if in good condition, for the reason that defendant is not responsible for the depreciation in weight and appearance of cattle naturally resulting from being transported." It will be observed that the objection here urged to the admission of the testimony is different from that made in the trial court. The rule is, when, on appeal, an assignment of error is predicated upon the admission of testimony, only such objections as were presented in the trial court and stated in the bill of exceptions will be considered. City of Austin v. Forbis (Tex. Civ. App.) 86 S. W. 31; T. & P. Ry. Co. v. Birdwell (Tex. Civ. App.) 86 S. W. 106S. As, therefore, the proposition cannot be considered, and as it is the only one advanced under the assignments of error, it will be overruled.

This also disposes of appellant's fifth, sixth, and seventh assignments of error, which, like this one, interpose for the first time on appeal objections to the admission of testimony different from what the bills of exception show were made in the court below.

There is no error requiring the reversal of the judgment, and it is affirmed.

DIFFIE V. THOMPSON et al. (Court of Civil Appeals of Texas. June 14, 1905.)

1. VENDOR AND PURCHASER-RESERVATION OF VENDOR'S LIEN-EFFECT ON TITLE.

Where a deed expresses as a part of the consideration thereof the assumption by the grantee of vendors' lien notes owed by, and described in the deed to, the grantor, and reserves a lien on the land to secure their payment, the superior title to the land remains in the grantor until the notes thus assumed are paid. 2. SAME FAILURE TO PAY NOTES-CONVEYANCE TO HOLDER-RIGHTS OF HOLder.

Where a grantee fails to comply with his promise to pay past-due notes of the grantor which he assumed, and to secure the payment of which a lien was reserved on the land, the vendor may convey the land to the holder of the notes; and the latter thus acquires all the rights of the vendor, together with the right to have the notes paid before the superior right to the land can vest in the grantee, who assumed the same.

3. SAME-RIGHT TO POSSESSION-FAILURE TO DISCHARGE NOTES.

A grantee of land, who has assumed the payment of vendor's lien notes, has no right, unless he pays the notes, to a judgment for the land or the possession thereof, in trespass to try title against the holder of the notes, to whom the grantor has conveyed the land.

Error from District Court, Red River County; Ben H. Denton, Judge.

Action by W. O. Diffie against W. H. Thompson and others. There was a judgment for defendants, and plaintiff brings error. Affirmed.

W S. Thomas, for plaintiff in error. Chambers, Doak & Kennedy, for defendants in error.

EIDSON, J. This suit was brought in the court below by the plaintiff in error against the defendants in error in the form of an action of trespass to try title to a tract of land described in his petition. Defendants in error Hearn and Thompson answered by general exception, general denial, plea of not guilty, and a special answer setting up that on August 28, 1900, J. B. Whitfield purchased the land in controversy from J. Long and wife, M. J. Long, and received a general warranty deed therefor; that afterwards, on December 31st, Whitfield and wife, M. J. Whitfield, conveyed to said Hearn, who acted for himself and the said Thompson, by a general warranty deed, the land in controversy-and prayed that said Whitfield and wife and J. Long and wife be made parties to the suit, and, in the event plaintiff recovered judgment against them, that they have judgment over against said Whitfield and Long upon their respective warranties. Long and wife answered by general denial, plea of not guilty, and by a special answer, alleging in substance as follows: "And further answering herein, these defendants say that they are husband and wife, and were such husband and wife on the 5th day of December, 1898, and that they were living on the land

described in plaintiff's petition as their homestead, with their family, at that time, and had no other homestead; that they were citizens of Red River county at that time, and that said land was their homestead at. that time they lived upon it and then occupied it as their homestead; that they desired to sell the same, and that they were ignorant people, and did not understand the legal purport of legal instruments, and that the plaintiff W. O. Diffie came to them, and told them, if they would execute and deliver to him a power of attorney, he would sell said land for them, and that they agreed to do so; that he then made or caused to be made the instrument described in plaintiff's petition as of date December 5, 1898, which he fraudulently represented to them to be a power of attorney, so that he could sell said land for them; that they relied on the statements so made by the said W. O. Diffie, and, believing them to be true, and that he was acting in good faith and with an honest intent, and not knowing that the said Diffie was setting up any claim to said land, they did on the 28th day of August, 1900, sell and convey by general warranty deed to J. B. Whitfield said land, not knowing that the instrument held by said Diffie showed on its face that it was a deed, but, believing it to be only a power of attorney, as it was understood to be, they conveyed said land to the said Whitfield; and that the said Diffie, in order to carry out his nefarious plans, and to cheat, swindle, and defraud these defendants and others who might buy said land, did not put said purported deed on record until after the deed was made by these defendants to the said Whitfield and placed on record in the county clerk's office, and then for the first time he claimed that said instrument was a deed, and endeavored by such means to extort money from these defendants and the purchasers of said land; and these defendants say that no consideration whatever was paid by said Diffie for said land, and the same was without consideration, and that purported deed casts a cloud upon the title to said land, and pray that said deed may be canceled, and all clouds removed, and for costs," etc. The case was tried by the court without a jury, and judgment rendered for all the defendants and against the plaintiff for costs.

The court below filed findings of fact and conclusions of law. Its second finding of fact is as follows: "(2) I find that on December 5, 1898, J. Long and wife deeded the land in question to plaintiff, W. O. Diffie, and that the consideration paid and agreed to be paid for the same was as follows, to wit: The assumption of two promissory notes described in a deed from J. W. Bailey et al. to J. Long, which were a vendor's lien on the land in question, and which notes were then owned by J. B. Whitfield, and the assumption of a debt of $35 due by Long to one Upchurch, and $5 paid Mrs. Long, wife of J. Long, and