and was made, as shown upon its face, by said railway company for itself alone, and in no way bound or affected appellant. This contract only bound the Texas & Pacific Railway Company to transport the cattle from Odessa to Ft. Worth, Tex., and there deliver them to its connecting carriers, and limited its liability for such damages as might occur on its own line of railway. No damages were shown, nor was there any evidence tending to show any, to have occurred on the line of the Texas & Pacific Railway Company. The cattle were safely transported by it to Ft. Worth without delay, and there delivered to the Gulf, Colorado & Santa Fé Railway Company. There was, however, evidence of a few hours' delay at Ft. Worth in transferring the shipment from the Texas & Pacific Railway Company to the Gulf, Colorado & Santa Fé, but there is no evidence tending to show that any damages were occasioned by it. The cattle were then transported, without delay, or any injury or damage, by the Gulf, Colorado & Santa Fé Railway Company, to Purcell, its terminus, in the Indian Territory, and there delivered to appellant railway company. From Purcell they were transported with reasonable dispatch, and without damage or injury, to Kansas City, Mo. But instead of delivering them there, as it should have done, to the Missouri Pacific Railway Company to be transported to Lexington, Mo., they were carried by appellant from Kansas City to Lexington Junction, which is on the opposite side of a large river from Lexington, where they were held for about two days, and then carried back by appellant to Kansas City, and afterwards delivered to the Missouri Pacific Railway Company, as should have been done at first, for transportation to Lexington. They were transported by the last-named company to Lexington, and there delivered to Walter B. Waddell, to whom plaintiffs had sold the cattle prior to the date of their shipment from Odessa at $20 per head, and who paid plaintiffs the full purchase price, less $100. The $100 deducted from the purchase price was on account of damages occasioned by the negligence of appellant in failing to deliver them to the Missouri Pacific Railway Company when they arrived at Kansas City for transportation to Lexington. There was no testimony reasonably tending to show that the cattle were damaged while in possession of defendants in a greater sum, and this damage is shown by the undisputed testimony to have resulted from appellant's negligence in the state of Missouri, and that neither of its codefendants were in any way responsible or liable for it.

Conclusions of Law.

In view of the decision of the Supreme Court in Texas & Pacific Railway Co. v. Lynch, 75 S. W. 486, and of the opinion of the Court of Civil Appeals of the Second Dis

trict in Atchison, Topeka & Santa Fé Railway Co. v. Forbis, 79 S. W. 1047, we are of the opinion that, upon the undisputed evidence, appellant's plea of privilege should have been sustained by the trial court, and the cause as to it dismissed. We will say, however, that we do not clearly perceive the distinction sought to be drawn by the Court of Civil Appeals of the Second District between the cases cited and the case of Atchison, Topeka & Santa Fé Railway Co. v. Williams, 86 S. W. 38. It certainly was never contemplated that a defendant could be deprived of the privilege, vouchsafed him by the law, of being sued in the county of his domicile, by reason of allegations by the plaintiff, known by him to have no foundation in fact, and fraudulently made for the sole purpose of conferring jurisdiction where none exists, and of depriving the defendant of a privilege guarantied him by the law.

Appellant's plea to the jurisdiction of the subject-matter, also, should have been sustained. For appellees were only entitled to such compensation, as damages, as would make them whole. This could not exceed the $100, and interest thereon, which they lost on the contract of sale. St. Louis & S. F. R. R. Co. v. McDurmitt Grain Co., 87 S. W. 355, 13 Tex. Ct. Rep. 125.

Because, upon the undisputed evidence, the trial court should, under the law, have sustained appellant's pleas of privilege and to the jurisdiction of the subject-matter, its judgment against appellant is reversed, and the case as to it dismissed. The judgments in favor of the Texas & Pacific Railway Company and the Gulf, Colorado & Santa Fé Railway Company are affirmed.

PECOS RIVER R. CO. et al. v. LATHAM.*

(Court of Civil Appeals of Texas. June 10,

1905.)

1. CARRIERS-CATTLE SHIPMENT-CONTRACTBREACH-EVIDENCE.

Where, in an action for breach of a carrier's contract to furnish cars for shipment of stock to P., all the witnesses who testified to the market at P. stated that such was a country market, and had not changed much during the entire spring, covering the time when the plaintiff's cattle should have reached P., the admission of evidence of an experienced cattle shipper, who had never actually transported cattle over the route in question, as to the length of time required to transport cattle to P. from the point of shipment, was harmless.

2. SAME-DAMAGES-EXTRA FREIGHT.

Where a carrier failed to perform a contract to furnish cars to transport certain cattle as agreed, the shipper was not bound to arrange with another railroad company to transport the cattle over defendant's route for a part of the distance in order to reduce the shipper's damages.

3. SAME-VARIANCE.

Where, in an action for breach of a carrier's contract to furnish cars in which to ship certain cattle, plaintiff alleged that defendants' agents who acted for them in negotiating the

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

contract, to wit, W. and S., were duly authorized to make such contract, proof that plaintiff negotiated the contract with S. through letters and telegrams, and consummated a verbal contract with M., did not constitute a fatal variance.

4. SAME-AUTHORITY OF AGENT EVIDENCE.

In an action for breach of a carrier's contract to furnish certain cars for the shipment of cattle, evidence of a witness as to contracts made by him with C., the agent of the Texas & Pacific Railway Company, by which cars had been furnished at I., a station on the line of such company, was admissible to show that such agent's contract with plaintiff to furnish cars at I., instead of the place originally contemplated, was within the scope of the agent's authority.

3. SAME-INSTRUCTIONS.

Where defendants' negligence concurred in causing injuries to plaintiff's cattle with that of other railroads over which the cattle were actually transported, and the amount of damages occasioned by each could not be definitely ascertained, defendants were liable for the damages proximately resulting from the combined negligence.

6. SAME.

A requested instruction that if plaintiff's cattle were damaged and were poor and weak, and their poor and weak condition, independent of any other causes, "aided, assisted, or contributed to the damage," then defendants were not liable for any damage that might have been occasioned by the condition of the cattle, was properly refused as misleading.

Appeal from District Court, Reeves County; James R. Harper, Judge.

Action by T. M. Latham against the Pecos River Railroad Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. W. Terry and Ed. J. Hamner, for appellants. T. J. Hefner and Pruit & Smith, for appellee.

SPEER, J. This suit was instituted by appellee against appellants to recover damages for breach of a contract to furnish him 35 stock cars for the shipment of cattle from Big Springs to Panhandle. He recovered a judgment for $4,000, from which this appeal has been perfected.

Our conclusions of fact, where necessary, will appear in the discussion of the various assignments of error.

Under the facts of this case there was no reversible error in permitting the witness Tillar to testify as to the length of time required to transport cattle from Big Springs, by way of Pecos, to Panhandle City. It seems to be true that the witness, although an experienced cattle shipper, had never actually transported cattle over this route. But since the testimony of all those witnesses who testified to the market at Panhandle indicated that such market was a country market, and not subject to much, if any, change during the entire spring, covering the time when, under the terms of the alleged contract, appellee's cattle should have reached Panhandle, the testimony, if erroneous, cannot be harmful. The market being the same for weeks prior as well as weeks sub

sequent to the time when, under his estlmate, the cattle should have reached their destination, it is immaterial whether his estimate be right or wrong.

Appellants complain that they have been held liable for the additional freights paid by appellee in transporting his cattle to Panhandle over other railroads after their failure to furnish the cars agreed to be supplied. They invoke the principle that after their breach of contract, it was the appellee's duty to exercise reasonable diligence to avoid or lessen his damages. No one doubts the correctness of this principle, but its application cannot relieve appellants in this case. The evidence shows that after appellants' failure to furnish cars, and while appellee's cattle were being held and suffering injuries, he arranged with the Texas & Pacific and other railroad companies to transport his cattle by way of Ft. Worth, rather than by way of Pecos, over the appellants' lines; that while appellee did not, at the time he actually billed his cattle out, request them to be routed over appellants' lines, yet he had previously made such request, and the Texas & Pacific Railway Company refused to furnish the cars for that route. Appellee pleaded that by reason of appellants' breach of their contract, and total failure to furnish him cars, he was compelled to pay this extra freight; and we think the evidence sustains his plea, and the law authorizes his recovery. Moreover, we think this principle cannot be invoked by appellants. for the reason that in the exercise of ordinary care a shipper would not be required to make a new contract with a railroad company which had just broken an identical one, and again agree to pay it for services which it was already under legal obligation to perform. This is analogous to the question decided by us in Sun Manufacturing Co. v. Egbert & Guthrie (Tex. Civ. App.) 84 S. W. 667.

From what we have already said to the effect that the market at Panhandle was about the same during the entire spring in which the shipment in controversy took place, it follows that there was no error in permitting the various witnesses to testify as to what that market was on or about the 5th day of May, 1902-the time when the cattle should have reached their destination.

We do not think there was any fatal variance between appellee's allegation "that the agents of defendants who acted for them in negotiating and making said contract, to wit, E. W. Martindell and Don A. Sweet, were duly authorized by them to make said contract," etc., and his proof that he negotiated with Sweet through letters and telegrams, and consummated a verbal contract with Martindell.

The testimony of the witness Tillar as to contracts made by him with W. A. Crowder, the agent of the Texas & Pacific Railway at Colorado City, by which cars had been furnished to the witness at Iatan, another sta

tion on the line of the Texas & Pacific, was admissible for the purpose of showing that this agent's contract with appellee to furnish the cars at Iatan, rather than at Big Springs, the place originally contemplated, was within the actual scope of Crowder's authority as agent of the Texas & Pacific Railway Company. Appellee testified that Crowder had made such a contract, and the latter not only denied that he had made the contract but also denied his authority to do so. Nor was there error in admitting the testimony of the witnesses Latham and Kendall as to the general custom among railroad live stock agents in regard to the subject of making contracts for shipping cattle. Such testimony certainly tended to show that the contract alleged to have been made with the live stock agent Martindell was at least within the apparent scope of that agent's authority, and the pleadings were amply broad to authorize the introduction of proof upon such issue.

We overrule that group of assignments embracing the thirteenth, fourteenth, fifteenth and sixteenth, because we think the evidence sufficient to justify a finding that appellee used all reasonable diligence to prevent damage to his cattle after appellants breached their contract.

The eighteenth assignment of error is predicated upon the court's refusal to give the following special instruction: "If you believe from the evidence that the plaintiff and defendants entered into a contract as alleged by plaintiff, and that defendants failed to comply with said contract, and in consequence thereof, and as the direct and proximate result of said breach of the contract, the plaintiff's cattle were damaged, and that afterward, after receiving said damage, if any, they were transported over the Texas & Pacific Railroad and the Ft. Worth & Denver City Railroad, and while in transit were further damaged by the negligence and improper handling and transportation, and the evidence fails to disclose to you the amount of such damages, and you are unable to determine the exact amount of damages caused before the cattle were received by the Texas & Pacific Railway Company, and the exact amount of damage occasioned to said cattle after being received by the Texas & Pacific Railway Company, then you are instructed to find a verdict for the defendants." In refusing this charge there was no error. It is certainly the law in this state that, if appellants' negligence concurred with the negligence of another in causing damages to appellee's cattle, it could not escape liability. See Ft. Worth & Denver City Railway Company v. Byers (Tex. Civ. App.) 35 S. W. 1082; Texas & Pacific Railway Company v. Smith & White (Tex. Civ. App.) 79 S. W. 614; Texas Central Railroad Company v. O'Loughlin, 84 S. W. 1104, 12 Tex. Ct. Rep. 102; Texas & Pacific Railway Company v. Slaughter, 84 S. W. 1085, 12 Tex. Ct. Rep. 99; Butterick Publishing Company v. Gulf, Colorado & San

ta Fé Railway Company (decided by this court June 3, 1905), 88 S. W. 299. While appellant would not be liable for damages resulting alone from the negligence of the Texas & Pacific Railway Company or Ft. Worth & Denver City Railway Company, it nevertheless would be liable for damages resulting proximately from their combined negligence. The rule goes even further, and, in personal injury cases, authorizes a recovery even though the negligence of the defendant concurs with the negligence of a fellow servant of the injured plaintiff (Ray v. Pecos & Northern Texas Railway Company [Tex. Civ. App.] 80 S. W. 112), or with an act of God (Chicago, Rock Island & Texas Railway Company v. Bessie Cain [Tex. Civ. App.] 84 S. W. 682). It is only where the concurrent cause is contributory negligence of the plaintiff that recovery is denied.

We think appellants' special charge No. 19 was properly refused, for two reasons: (1) The matter was sufficiently covered in the court's general charge; and (2) the requested charge itself was so worded as to be misleading. The charge reads: "If you find from the evidence that plaintiff's cattle were damaged and they were poor and weak, and that their poor and weak condition, independent of any other causes, aided, assisted, or contributed to the damage, then you are instructed that the defendants were not liable for any damage that might have been or were occasioned by reason of the condition of the cattle." It is difficult to understand how a condition independent of any other causes could aid, assist, or contribute to the damage, as this charge asserts. This is confusing, and for that reason alone could have been refused.

The evidence is sufficient to support the material allegations of appellee's petition, and the finding of the jury that appellants, by reason of the breach of their contract, damaged appellee in the amount of the verdict.

All assignments of error have been considered, and none is thought to present reversible error. The judgment is therefore affirmed.

Appeal from District Court, Collin County; J. M. Pearson, Judge.

Action by J. H. Burns against W. J. McBride and others. From a judgment in favor of the plaintiff, McBride appeals. Affirmed.

Thos. W. Thompson and Looney & Clark, for appellant. R. T. Shelton, for appellee bank.

FISHER, C. J. Appellee Burns brought this suit in trespass to try title against McBride to recover 25 acres of land out of the Madison Walker 320-acre survey. McBride answered, disclaiming as to all lands in said survey lying south of a line running from a point on the east boundary line of said survey, from which—and here follows a description which it is not necessary to repeat-and a plea of not guilty as to all land lying north of said line. By special plea McBride also alleged that he purchased the land north of said line from B. D. Sachse, who warranted the title thereto; that a part of the consideration was three promissory vendor's lien notes against the said land, aggregating $3,800; that these notes were made payable to the Plano National Bank, and were given to it in the transaction as a substitute for a deed of trust then held against said land by the bank to secure a debt owing it by Sachse. Sachse was insolvent, and unable to protect his warranty; that the bank knew all of the facts when the land was purchased, and the notes given. He prayed that Sachse and the bank be made parties, and that, should the plaintiff recover any of the land, the purchase price of the part so recovered be deducted from the notes, and for general relief. The bank answered by general denial, and specially that it was not a warrantor of the land, and was an innocent purchaser of the notes, and certain other facts that were set up in the amended answer. The case was tried before the court without a jury, and judgment was rendered in favor of appellee Burns for the land, and in favor of the Plano National Bank and against Sachse on his warranty.

As the case was tried before the court without a jury, in view of all the evidence in the record bearing on the subject of boundary, we are of the opinion that if any error was committed in the ruling of the court as complained of in the first, second, and third assignments of error, if the ruling had been different and in accordance with the views of appellant the conclusion reached by the trial court would not have been different.

The remaining assignments are complaints directed against the conclusions of fact and law filed by the trial court. The conclusions of fact and law are here set out in full, which we approve as substantially correct, in accordance with the facts.

"Findings of Fact.

"(1) The court finds that the contest in this case is over the location of 25 acres of land

in the Madison Walker survey in Collin county; that the Madison Walker survey consisted of 320 acres of land, out of which 200 acres in the north part of said survey was sold, and the land in dispute was a part of the 200-acre subdivision of said survey; that both plaintiff and defendant claim under a common source, to wit, John Johnson and George A. Wilson.

"(2) That on the 22d day of November, 1872, John Johnson and George A. Wilson sold to Robert McRae 200 acres of land in the north part of the Madison Walker survey, described by the calls as follows, to wit: Beginning at the N. E. corner of the original survey; thence west 617 varas; thence south 1,825 varas; thence east 617 varas; thence north 1,8251⁄2 varas to the place of beginning; containing 200 acres of land, more or less.

"(3) I find that the beginning corner of the above-described tract of land, to wit, the northeast corner of the original Madison Walker survey, is a well-recognized corner, and that the 200-acre tract described in the second finding of fact can, by following the calls for course and distance, be easily located upon the ground, and, in view of the fact that there are no calls for natural objects, except for the beginning corner of the Madison Walker survey, the 200-acre tract must be located only by commencing at the beginning corner as called for in the deed from Johnson & Wilson to McRae, and tra cing the lines by course and distance; that, establishing the 200-acre tract in that way, there is barely 200 acres embraced within its calls.

"(4) That on the 24th day of April, 1874, Robert McRae executed a power of attorney to T. C. Goodner and James H. Jenkins, by the terms of which McRae authorized them to sell and convey the 200-acre tract of land described in the second finding of fact, which power of attorney was filed for record in the proper place on the 27th day of January, 1877; that this power of attorney recites that McRae lived in New Orleans, Louisiana.

"(5) That on the 27th day of January, 1877, Robert McRae, by his attorneys of record, T. C. Goodner and J. H. Jenkins, conveyed by general warranty deed to John H. Burns the following described tract of land, being 25 acres out of the 200-acre tract conveyed to Robert McRae by John Johnson and G. A. Wilson. The locative calls are as follows, to wit: 'Beginning at the S. W. corner of said 200 acre tract a stake, from which a Hackberry, 14 in. in dia. mkd. X brs. N. 20 W. 7 lks.; thence east with the S. line of said 200 acre tract 25 chains and 97 lks. to a stake the S. E. corner of said 200 acre tract, from which a bois d'arc 14 in. in dia. mkd. with an old X brs. S. 21 deg. W. 44 lks., and an Elm mkd. with an old X brs. N. 842 W. 31 lks.; thence N. 9 chains and 62 lks. to a stake from which a triple bois d'arc 16/14 in. in dia. is respectively one marked X brs. N. 27 W. 7 lks.; thence W. 25 chains

and 97 lks. to a stake from which a forked bois d'arc 24 in. in dia. marked X brs. S. 24 W., 12 lks.; thence S. 9 chains 62 lks. to the beginning and containing 25 acres of land.' That this deed was filed for record in the proper place June 14, 1887. The consideration recited in this deed was $37.50 cash, and note for $37.50.

"(6) I find that the controversy in this suit is over the location of the 25-acre tract of land described in finding No. 5; that, if the 25-acre tract be located in the 200-acre tract sold by Johnson and Wilson to McRae, then it would be located where plaintiff claims the same to be located, and plaintiff would be entitled to recover; but, if the 25acre tract be located where defendant claims the same to be, then it would be entirely outside of the 200 acres sold by Johnson and Wilson to McRae, and, if the calls of the deeds should place the said land outside the said 200-acre tract, then the defendant would be entitled to recover the land in dispute.

"(7) I find that there is a conflict in the calls of the deed from Robert McRae to plaintiff, Burns, conveying the 25-acre tract, in this: If the calls for natural objects be ignored, and the calls for course and distance be allowed to control, then the land would be located where plaintiff claims the same to be. I find, however, that there is a call in the deed for a triple bois d'arc at the N. E. corner of the 25-acre tract, and a call for a forked bois d'arc at the N. W. corner of the 25-acre tract; that, if the land be located by a course and distance, there is no triple bois d'arc at the N. E. corner of said 25-acre tract, and no forked bois d'arc at the N. W. corner of said 25-acre tract, nor is there any hackberry at the S. W. corner of the 200acre tract, as called for in the deed to the 25-acre tract, nor is there any bois d'arc or elm at the S. E. corner of the 200-acre tract, as called for in the deed to the 25acre tract. But I find on the east boundary line of the Madison Walker survey, and at a distance of 13.77 chains south of where course and distance would locate the N. E. corner of the 25-acre tract of land in dispute, there is still standing a triple bois d'arc, which comports in marks and size, but not in distance, with the triple bois d'arc called for at the N. E. corner of said 25-acre tract; and I further find that there is a forked bois d'arc which has fallen upon the ground on the west line of the 200-acre tract of land, and situated 13.77 chains south of where course and distance would place the N. W. corner of the 25-acre tract of land, and that said fallen bois d'arc comports in marks and size with the one called for in the deed to plaintiff, but does not harmonize in any respect with course and distance, but, on the contrary, if the land should be located by assuming that the triple bois d'arc called for in the deed at the northeast corner of the 25acre tract, as claimed by defendants, is the one originally marked by the surveyor who

ran the line, and by assuming that the fallen forked bois d'arc at the northwest corner of the 25-acre tract, and as claimed by defendants, was the original tree, marked by the original surveyor who ran the line as the northwest corner of the 25-acre tract, then the 25-acre tract would be located way south of the south boundary line of the 200acre tract which formerly belonged to Robert McRae.

"(8) I further find that on the 2d day of February, 1877, Robert McRae conveyed by special warranty deed to Richard Buckner and Robert Buckner all the 200 acres, more or less, conveyed to him by John Johnson and G. A. Wilson, and described in finding No. 5, and that this deed was filed for record in the proper place on the 7th day of February, 1877. This deed recited a consideration of $800 cash, but there was no proof of any payment of any consideration. This deed was filed for record and recorded several years prior to the time when the deed from Robert McRae to John Burns was recorded, as described in the fifth finding. I further find in this connection that the failure of plaintiff to have his deed to the 25-acre tract recorded before the deed from McRae to Richard and Robert Buckner was recorded did not inure to the benefit of the latter and those claiming under them, for the reason that Richard and Robert Buckner, when they afterwards sold the land purchased by them from McRae, recognized the validity of the sale of 25 acres by McRae to plaintiff, as will more fully appear from the next succeeding finding of fact.

"(9) I find that on the 22d day of July, 1878, R. T. Buckner and R. A. Buckner by warranty deed conveyed to L. A. Lollar 130 acres of land described in the 200-acre tract conveyed by Johnson and Wilson to McRae, and when Lollar's deed was executed it expressly excepted out of said deed the 10-acre tract sold by Robert McRae to W. R. Wallis January 27, 1877, and the 25-acre tract sold by McRae to J. H. Burns January 27, 1877, and the 35-acre tract sold by McRae January 27, 1877. The Lollar deed was filed for record in the proper place July 22, 1877.

"(10) I find that on the 6th day of August, 1885, F. M. Rogers and J. C. Lollar, as executors of L. A. Lollar, deceased, conveyed to Daniel B. Sachse the following described tract of land (being part of the Madison Walker survey of 320 acres, and being part of a 200-acre tract taken out of said survey): 'Beginning at the N. W. corner of a tract of 25 acres sold to John H. Burns from which a forked bois d'arc 24 in. in dia. mkd. X brs. S. 24 lks., W. 12 lks.; thence E. 25 chs, and 97 lks. to the N. W. corner of said Burns a stake from which a triple bois d'arc 16/24 & 14 in. one mkd. X brs. N. 27 W. 3 links; thence N. 5 chs. and 77 lks. with the E. B. line of said 200 acre tract to the S. E. corner of a 10 acre tract sold to W. R. Wallis; thence W. 25 chs. and 97 lks. to the S. W. cor. of said 10 acres; thence S. 5 chs, and