Had the words "heirs of F. Lawrence" been used, it would have been different, as by parol evidence the names of the persons meant by "heirs of F. Lawrence" could be shown. Plaintiff in error, according to the allegations of his petition, seeks to show by parol evidence that by the words "estate of F. Lawrence" was meant, not the heirs, legatees, and devisees of F. Lawrence, but those of Archilus Lawrence and Franklin Lawrence, and, further, that "F. Lawrence," used in the writing, meant the executor and manager of said estates. We think it clear that this would be varying and adding to the written instrument, and in contravention of the established rules of evidence.

A

Further, the writing, while purporting to sell two certain lots in a certain block in the city of Dallas, shows on its face that the - estate of F. Lawrence and E. Hazzard own separate and distinct parts of said lots, but fails in any manner to describe the respective parts owned by each. This is also a fatal defect or omission in the writing, and cannot be remedied by parol evidence. contract for the purchase of real estate must contain within itself all of the necessary elements of such a contract, and such requisites cannot be supplied by parol proof. derson v. Sullivan, 91 Tex. 499, 44 S. W. 484; Jones v. Carver, 59 Tex. 293; Patton v. Rucker, 29 Tex. 402; Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366; Mentz v. Newitter, 122 N. Y. 491, 25 N. E. 1044, 11 L. R. A. 97, 19 Am. St. Rep. 514; Clampet v. Bells (Minn.) 39 N. W. 495.

Zan

In Grafton v. Cummings, supra, the Supreme Court of the United States say: "The statute not only requires that the agreement on which it [the action] is brought, or some memoranda thereof, shall be signed by the party to be charged, but that the agreement or memoranda shall be in writing. In an agreement of sale, there can be no contract without both a vendor and a vendee. There can be no purchase without a seller. There must be a sufficient description of the thing sold and of the price to be paid for it. It is therefore an essential element of a contract in writing that it shall contain within itself a description of the thing sold, by which it can be known or identified, of the price to be paid for it, of the party who sells it, and the party who buys it. There is a defect in this memorandum in giving no indication of the party who sells. If Grafton was bound to purchase, it was because somebody was bound to sell. If he was bound to pay, somebody was bound to receive the money and to deliver the consideration for the price so paid. There can be no bargain without two parties. There can be no valid agreement in writing without these parties are named in such manner that some one whom he can reach is known to the other to be bound also."

We do not think the writing quoted above, and upon which this suit is based, is sufficient to satisfy the requirements of the stat

ute of frauds (Article 2543, Sayles' Rev. Civ. St. 1897). Where the contract is void under the statute of frauds, the agent making it, though not authorized by his alleged principal, is not liable thereon. The alleged principal not being bound, the assumed agent would not be. Dung v. Parker, 52 N. Y. 496; Baltzen v. Nicolay, 53 N. Y. 467.

We are of opinion that the court below did not err in sustaining the general demurrers and general exceptions contained in defendants' answers, and in dismissing this suit. The judgment of the court below is therefore affirmed.

Affirmed.

MCCABE v. SAN ANTONIO TRACTION CO.*

(Court of Civil Appeals of Texas. May 31, 1905.)

1. APPEAL-HARMLESS ERROR.

In an action against a street railroad for injury to a passenger, where the case was submitted to the jury only on the alleged negligent act of the conductor in releasing his hold on the injured person while she was on the running board, and on the issue of her contributory negligence, any error in the admission in evidence of a city ordinance inhibiting street cars from stopping on street crossings, and compelling them to stop after passing such crossings, to take on and let off passengers, was not prejudicial to plaintiff.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2275-2277.] 2. EVIDENCE TY.

CONCLUSIONS

ADMISSIBILI

The admissibility of the testimony of an eyewitness as to the cause of the fall of the injured person was not affected merely because he stated that the only conclusion he could come to was that the injured person slipped and fell.

3. SAME.

The conclusions or opinions of common observers, testifying to the results of their observations made at the time as to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to a jury, are admissible under an exception to the general rule excluding the conclusions of a witness.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2149-2152.]

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by John McCabe against the San Antonio Traction Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Will A. Morriss, for appellant. Ogden & Brooks, W. H. Lipscomb, and Walter P. Napier, for appellee.

NEILL, J. This was a suit brought by appellant against the appellee to recover $15,000 damages for personal injuries to his wife, alleged to have been occasioned by the negligence of defendant while she was a passenger upon one of its electric street cars. After alleging that the car upon which

*Rehearing denied June 28, 1905, and writ of error denied by Supreme Court.

his wife was a passenger was an open car, provided with a step known as a "running board," extending along its side from one end of the car to the other, plaintiff alleged as the grounds of negligence which caused her injuries: That defendant negligently failed to stop the car at a street crossing where there was a plank walk upon which she could alight from the car with safety, and that, after the car passed beyond the plank walk, it being dark, and his wife not being able to see the condition of the street where the car was stopped, in response to defendant's invitation to alight from the car at such point she stepped on the running board. She being an aged and delicate woman, the conductor, while guiding and assisting her, told her to walk back along the running board to the end of the car to the plank walk, suddenly turned her around, facing the back end of the car, and then, without warning her, suddenly turned loose her arm, whereby she, being unable to balance and prevent herself from falling, fell violently to the ground. That the act of the conductor in releasing his hold on her in such manner was negligence on the part of defendant, which, without fault or negligence of plaintiff's wife, independently and together with the negligence of defendant in failing to stop the car at a proper place for her to alight, was the direct and proximate cause of her injuries. The defendant, after denying the alleged acts of negligence, pleaded that plaintiff's wife was guilty of contributory negligence, in that after the car had stopped in obedience to her signal at a reasonable, safe, and proper place for her to alight therefrom, she, in undertaking to alight, was so negligent and careless that she slipped and fell from the running board, thereby causing her fall, and injuries, if any, resulting therefrom. The case was submitted to the jury only upon the alleged negligent act of the conductor in releasing his hold on plaintiff's wife while she was on the running board, and upon the issue of her contributory negligence. A general verdict was found for the defendant, and from the judgment entered upon it plaintiff has ap pealed.

Conclusion of Fact.

We find, in deference to the verdict, that plaintiff's wife's fall from the car and alleged injuries were not caused by the negligence of defendant.

Conclusions of Law.

As the case was not submitted to the jury upon the issue of the alleged negligent failure of defendant to stop the car so plaintiff's wife could alight therefrom on the plank walk, we fail to perceive how plaintiff could in any way have been prejudiced by the court's admitting in evidence the ordinance of the city inhibiting street cars from stopping on street crossings, and compelling hem to stop after passing such crossings,

for the purpose of taking on and letting off passengers. If, however, the case had been submitted on the issue as to whether defendant was negligent in failing to stop the car opposite the plank walk, which was shown to be at a street crossing, the ordinance would have been admissible as evidence negativing such negligence. For a defendant cannot ordinarily be held negligent in acting in obedience to a valid ordinance of the city prescribing its duties to the public.

The third assignment of error complains of the court's refusing on plaintiff's motion, to strike out the testimony of the witness F. W. Cook, to the effect that Mrs. McCabe slipped off the running board; the ground of such motion being that the witness, on cross-examination, showed that his statement that she slipped off was merely a con clusion, and that he did not know and could. not testify as a fact that she slipped. The testimony of the witness which is made the subject of this assignment is as follows: "I was sitting several seats behind the two ladies, and one of them rang the bell. I think it was Beauregard street. The streets were muddy. The elder of the two ladies rose first to get off the car, and I think she walked along the running board some distance, because the car went beyond this cross-walk; that is, I mean the car didn't go beyond the cross-walk, but the seat upon which she was sitting went beyond the crosswalk. I mean across the walk. And as she was walking along the younger lady also started to leave the seat, and stepped on the running board, and, when the younger lady rose from her seat to get on the running board, the conductor got out and stood on the ground, wishing to assist the ladies to get off the car; and, when both ladies attempted to get off the car at the same time, the conductor was compelled to divide his attention, and he tried to help the old lady and the young lady at the same time, and the old lady slipped and fell in the mud in the street. * The car did not stop exactly at their seat. So they had to walk along the running board to get to the crosswalk." On cross-examination he testified: "I was sitting several seats behind the la dies. I was not paying particular attention to what occurred. There were no other persons between me and them to obstruct the view. Well, the lady must have slipped and fell, because she couldn't fall any other way. I testify that she fell, whether she slippedThat is the only conclusion I can come to. * It was simply a form of speech to illustrate the way she fell. I said that she slipped, because that was the natural way for her to fall. If a man falls on the street, it is presumed he slipped.

* *

* I will state positively that she did step along the running board." It is an exception to the general rule that witnesses cannot give conclusions or opinions that evidence of common observers, testifying to the results of their observation, made at the

time, in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to a jury, is admissible. Commonwealth v. Sturtivant, 117 Mass. 133, 19 Am. Rep. 401; Elliott on Evidence, §§ 676-678. We believe the testimony complained of in this assignment comes within, and was admissible as evidence under, this exception to the general rule, and that the court for this reason did not err in excluding it from the consideration of the jury.

Our conclusion of fact disposes of the assignment which complains of the insufficiency of the evidence to support the verdict. The burden of proving negligence was upon the plaintiff, and, unless the evidence upon the issue was of such preponderating weight as to show the verdict is wrong, we are not authorized to disturb it.

The judgment of the district court is affirmed.

TEXAS & P. RY. CO. v. MALONE. (Court of Civil Appeals of Texas. June 7, 1905.)

EVIDENCE-REBUTTAL.

Where, in an action for personal injuries, defendant introduced testimony as to what plaintiff had said immediately after the happening of a certain accident, it was not error to admit in rebuttal testimony as to an entirely different accident from that in which the injuries sued for were received, which testimony tended to show that the statements claimed to have been made by plaintiff were made on this other occasion.

Appeal from Van Zandt County Court; John W. Davidson, Judge.

Action by M. M. Malone against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. J. Freeman, H. M. Cate, and J. A. Germany, for appellant. Leaston Davidson and W. A. Davidson, for appellee.

KEY, J. This is a personal injury suit, resulting in a verdict and judgment for the plaintiff for $300, and the defendant has appealed.

The assignments of error complain of the action of the court in admitting testimony tending to show another and different accident than the one in which appellee claims to have been injured. This testimony was given in rebuttal, and after the defendant had introduced testimony relating to and tending to show what the plaintiff said immediately after the happening of a certain accident. The testimony complained of tended to show that that was on a different occasion and related to a different accident, and was admissible for that purpose. No error has been pointed out, and the judgment is affirmed.

Affirmed.

KALKLOSH v. BUNTING. (Court of Civil Appeals of Texas. July 1, 1905.)

1. APPEAL-PROCEEDING IN FORMA PAUPERIS -DISQUALIFICATION OF JUDGE.

The affidavit of appellant attempting to appeal under Rev. St. 1895, art. 1401, authorizing an appellant to appeal, though unable to pay costs or give security therefor, on making proof of his inability before the trial court or the county judge by affidavit stating his inability, cannot be taken before the county judge who was counsel for appellant in the litigation, because the act of the judge in determining the matter is judicial, within Sayles' Ann. Civ. St. 1897, art. 1129, providing that no county judge shall sit in any case where he shall have been of counsel, though there was no actual contest before the judge as to appellant's inability.

2. SAME JURISDICTION OF APPELLATE COURT -RAISING QUESTION BY AFFIDAVIT.

The question whether appellant, attempting to appeal under Rev. St. 1895, art. 1401, authorizing an appeal by one unable to pay the costs or give security therefor, furnished proof of his inability, may be raised in the appellate court by affidavits showing the facts.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Action between A. Kalklosh against J. Wiley Bunting. From a judgment for the latter, the former appeals. Appeal dismissed on memorandum opinion. Judgment of dismissal affirmed on rehearing.

R. L. Stennis, for appellant. McCall, for appellee.

McCall &

SPEER, J. From an adverse judgment in the district court of Parker county, A. Kalklosh has attempted to appeal to this court, under the provisions of article 1401 of the Revised Statutes of 1895, which article reads as follows: "Where the appellant or plaintiff in error is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the county judge of the county where such party resides, or before the court trying the case, and shall consist of the affidavit of said party, stating his inability to pay the costs; which affidavit may be contested by any officer of the court or party to the suit, whereupon it shall be the duty of the court trying the case, if in session, or the county judge of the county in which the suit is pending, to hear evidence and to determine the right of the party. under this article to his appeal."

The affidavit provided for in the foregoing article was subscribed and sworn to by Kalklosh before the county judge of Parker county after the adjournment of the district court trying the case. The county judge at the time was of counsel for Kalklosh in this litigation, and for this reason we dismissed his appeal on a former day, and the matter is again before us on motion for rehearing, the

insistence being that the fact that the county judge was of counsel for Kalklosh did not disqualify him in the particular referred to. But we see no reason to change our former holding. The article under which Kalklosh attempted to appeal, and which dispenses with the necessity of an appeal bond in certain contingencies, clearly requires that proof of the appellant's, or plaintiff in error's, inability to pay the costs of appeal or give security therefor, shall be made either before the county judge of the county where such party resides, or before the court trying the case. It is true that the affidavit of the party, in the absence of a contest, may be taken as sufficient proof by the officer trying the issue. It may be true that such affidavit is necessarily conclusive. Notwithstanding this, the act of the court in determining such matter is a judicial, and not a ministerial, act, and, being such, the proceeding in the present case was violative, generally, of the principle that a man should not act as judge in his own case, and specially of article 1129, Sayles' Ann. Civ. St. 1897, providing that "no judge of the county court shall sit in any case wherein he may be interested, or where he shall have been of counsel, or where either of the parties may be connected with him by affinity or consanguinity within the third degree." That there was in fact no actual contest instituted cannot, we think, affect the conclusion that the act of the county judge was a judicial, rather than a ministerial, one. It has been held that a disqualified judge cannot grant a certiorari to remove the cause from a justice to the county court (Baldwin v. McMillan, 1 White & W. Civ. Cas. Ct. App. § 515), or make an order dismissing a cause for want of prosecution (Garrett v. Gaines, 6 Tex. 435), or make an order allowing to be filed an information for a quo warranto (State v. Burks, 82 Tex. 584, 18 S. W. 662), or to render a judgment in the case even by confession (Chambers v. Hodges, 23 Tex. 105).

This question, arising as it does since the final determination of the cause in the district court, and being one which could not have been put in issue in that court, is properly raised here by affidavits showing the facts affecting our jurisdiction. Nalle v. City of Austin (Tex. Sup.) 22 S. W. 960.

For these reasons, our former ruling in dismissing the appeal is adhered to, and the motion for rehearing overruled.

ATCHISON, T. & S. F. RY. CO. v. WADDELL BROS. et al.

(Court of Civil Appeals of Texas. June 14, 1905.)

1. CONNECTING CARRIERS-INJURIES TO CATTLE-ACTIONS-VENUE.

Where cattle were shipped over the lines of several connecting carriers under a bill of lading limiting the liability of each to its own

ne, and constituting a separate contract on be

half of the shipper and each railroad company, plaintiff was not entitled to sue one of them for a separate default in a county where it had no agent or place of business, and through which its line of railroad did not run. 2. SAME-DAMAGES.

Where plaintiffs shipped certain cattle which they had sold, and received from the purchaser the entire price, less $100, deducted for injuries to the cattle in transit, such sum, with interest, being the measure of plaintiffs' damages in an action against the carriers, the action was not within the jurisdiction of the county court, though plaintiffs alleged damages in the sum of $450 for the purpose of conferring such jurisdiction.

Appeal from Midland County Court; L. M. Murphy, Judge.

Action by Waddell Bros. and others against the Atchison, Topeka & Sante Fé Railway Company and others. From a judgment in favor of plaintiffs, defendant Atchison, Topeka & Sante Fé Railway Company appeals. Reversed in part.

See 86 S. W. 655.

J. W. Terry and Ed. J. Hamner, for appellant.

NEILL, J. W. N. & T. N. Waddell, alleging they were partners, sued the Texas & Pacific Railway Company, the Gulf, Colorado & Sante Fé Railway Company, and the Atchison, Topeka & Sante Fé Railway Company in the county court of Midland county for damages to a shipment of cattle made from Odessa, Tex., to Ft. Worth, Tex., over the line of the Texas & Pacific Railway Company, and from Ft. Worth to Kansas City, Mo., over the lines of the Gulf, Colorado & Santa Fé Railway Company and appellant. Plaintiffs alleged that the Texas & Pacific Railway Company contracted with them for itself and its codefendants to deliver the shipment of cattle to the Missouri Pacific Railway Company at Kansas City, Mo., to be from thence transported by said company and delivered at Lexington, Mo.; that the cattle were injured by the negligence of defendants in transit, to plaintiffs' damage in the sum of $450. The Texas & Pacific Railway Company answered by a general demurrer, a general denial, and specially denied that it contracted with plaintiffs and its codefendants to deliver the cattle to the Missouri Pacific Railway Company at Kansas City, but, on the contrary, alleged that it only contracted to transport the cattle over its own line of railroad, and that, by the terms of the contract, its liability was limited to its own line. The Gulf, Colorado & Santa Fé Railway Company pleaded its privilege of being sued in Galveston county, Tex., and afterwards, in the event such plea should not be sustained, plead matters in bar, not necessary to mention here. Appellant, the Atchison, Topeka & Santa Fé Railway Company, filed a plea in abatement to the jurisdiction of the court, claiming its privilege of being sued in El Paso county. In this plea appellant alleged that it is a

foreign corporation incorporated under the laws of Kansas, that it operates its own line of railway through the territory of Oklahoma and the states of Kansas and Missouri, but does not own nor operate any part of its railroad in the state of Texas, and that no part of its road extends into Texas or in any county thereof; that it does operate under a lease, approved by the Texas Railroad Commission, the railroad of the Rio Grande & El Paso Railway Company, extending from the boundary line of the state of Texas to El Paso in the state of Texas, a distance of 20.19 miles; that none of defendants, except the Texas & Pacific Railway Company, owned or operated any railroad or part of a railroad in Midland county, Tex., nor did they own or operate any railroad in said county when this suit was filed, nor have they ever owned or operated any railroad in said county; that the Atchison, Topeka & Santa Fé Railway Company is doing business in the state of Texas, and has a local agent in El Paso county, Tex. (whose name is given in the plea), and has a local office there for its freight, passenger, and traveling freight and passenger agents (whose names are set out in the plea); that it has no office, agency, officer, agent, or representative of any character whatsoever in Midland county, and never had; that its principal office is not in the state of Texas, but at Topeka, in the state of Kansas; that said defendant is not sued for any crime, trespass, or fraud committed in Midland county, Tex.; that defendant and the Texas & Pacific Railway Company are not partners nor agents, and no relation of partnership or agency of any character whatever exist between them, and none existed at the time of the shipment involved in this suit, and none has ever at any time existed; that the shipment involved was made over defendant's line of railroad under and by virtue of a written contract made with plaintiffs about November 6, 1903, at Ft. Worth, in Tarrant county, Tex., and defendant had no connection whatever with any contract made by the plaintiffs with the Texas & Pacific Railway Company, and, if the Texas & Pacific Railway Company or any one else made or executed any contract with plaintiffs for or on behalf of defendant, the same was executed without its authority; that this is not a suit for personal property or the recovery thereof, and no other ground exists under the laws to give jurisdiction to try this case as against this defendant in the courts of Midland county, Tex., and all allegations contained in the pleadings of this case which would have the effect of laying venue as against this defendant in Midland county, Tex., are untrue, and were falsely and fraudulently made for the sole purpose of giving jurisdiction, and that all the facts stated in this plea as now existing existed in all respects the same at the time of plaintiffs' shipment involved in this case, and

have so existed ever since; that it appears from the face of plaintiffs' petition, and it is a fact, that no part of the cause of action sued on, and no act of this defendant constituting any part of said cause of action, ever existed, occurred, happened, or transpired in Midland county, Tex., but the same entirely transpired outside the limits of the state of Texas; that plaintiffs have falsely and fraudulently joined in this suit the Texas & Pacific Railway Company as defendant with this defendant, for the sole and only purpose of endeavoring to secure jurisdiction of the person of defendant in the county of Midland and state of Texas; that it appears from plaintiffs' petition that their cause of action, in so far as it relates to the Texas & Pacific Railway Company, is not within the jurisdiction of this court, nor did this defendant or its codefendant, the Gulf, Colorado & Santa Fé Railway Company, have any connection or relation whatever with said contract out of which arose the cause of action against the Texas & Pacific Railway Company; and it further appears from said petition that the contract out of which arose the cause of action between plaintiffs and this defendant and the Gulf, Colorado & Santa Fé Railway Company was and is entirely independent of and disconnected with, having no relation to, the contract between plaintiffs and the Texas & Pacific Railway Company out of which arose the cause of action against this defendant. This plea was duly verified by affidavit. The plea of privilege, having been submitted to the court and evidence heard thereon, was overruled, as well as the plea of privilege of the Gulf, Colorado & Santa Fé Railway Company. After the pleas of privilege were heard and overruled by the court, the two last-named railway companies filed a plea, under oath, to the jurisdiction of the court, in which they alleged that the amount in controversy was less than $200, and that the allegations laying the damages at a greater amount were falsely and fraudulently made for the purpose of giving the court jurisdiction. These two railway companies, then, answered by special exceptions and pleas in bar of plaintiffs' action. The case was tried before a jury, which returned a verdict in favor of plaintiffs against appellant for $100, with interest at 6 per cent. from November 13, 1902. The jury also returned a verdict in favor of the Texas & Pacific Railway Company and the Gulf, Colorado & Santa Fé Railway Company. From the judgment entered against appellant on the verdict, this appeal is prosecuted.

The undisputed evidence, shown by the bill of exceptions taken to the action of the court in overruling appellant's plea of privilege, establishes beyond a doubt all the allegations in said plea. It is likewise shown by the uncontradicted evidence that the contract made between plaintiffs and the Texas & Pacific Railway Company was in writing,