The negligence or breach of contract submitted was solely that of delay in the transportation, the result of which was alleged to have been shrinkage in the cattle and loss in market price. The defendant Texas Central Railroad Company had pleaded a written contract confining its liability to its own line, which terminated at Waco. Plaintiff, as to such written contract, alleged facts and circumstances which would defeat it as the contract of shipment under a uniform line of decisions in this state. The Missouri, Kansas & Texas Railway Company of Texas was also a defendant, but a verdict for said company was returned by direction of the court. Against the appellant the verdict was for $230.

The second, third, and twenty-seventh assignments of error are overruled. It was, in our opinion, not necessary for plaintiff to deny under oath the execution of the written contract, in order to avoid it for duress, fraud, mistake, or the like. Ry. v. Jackson, 86 S. W. 47, 11 Tex. Ct. Rep. 855.

The propositions advanced under the sixth assignment are foreign to it.

Under the eighth assignment it is claimed that the undisputed facts failed to show any damage to plaintiff's cattle while on appellant's line; hence it was error to submit to the jury appellant's liability if the written contract was found to prevail. This contention is not substantiated. It was in evidence that the cattle did not arrive at Ft. Worth when they should have done, but did so so late in the day that the market for that day was practically closed. The delay occurred on appellant's line. There was proof that the delay in reaching there would result in shrinkage over and above that which would have occurred had they not been delayed. Plaintiff received less for his cattle than their market price that prevailed at Ft. Worth on the day they reached there. What plaintiff received for his cattle and what he would have received had they reached there at the proper time was shown. What is here said disposes of the fourteenth assignment. Under the same assignment we have the further proposition that the charge complained of put the burden on defendant to show that there was no oral contract, but this we find was not the case.

The eleventh and twelfth assignments are without any merit whatever.

The seventeenth and twentieth assignments complain of the refusal of special charges, which, if given, would have assumed that there was no oral contract.

In this case there was no necessity for defining the term "negligence," because the act complained of was delay. Hence we overrule the twenty-first assignment.

The twenty-third assignment is overruled, because a charge on the measure of damages was given as appellant asked, as appears from the supplemental transcript.

The witness Drahm was properly allowed

to testify from his own knowledge as to what was the freight rate from one point to another. As to the particular freight rate he was testifying about, he testified he knew it because he had paid it a number of times, and had been told by the agent what it was.

The thirty-fourth assignment complains of the following testimony of witness Miller: "After arriving at Waco, and after having boarded the train on the transfer track, I heard a man who was on the engine of the transfer track make the following statement: 'I was called out to meet this train of the T. C. R. R. Co. at 3 o'clock this morning.'" The statement of facts shows this testimony in the connection in which it was given by the witness thus: "We got to Waco about 6 in the morning. When we got to Waco, they cut our cars off this side of Waco, at the end of the Central tracks, I suppose. I crawled up on the cars, and they took us over to the M., K. & T. I rode over on the cars. After boarding the train on the transfer track, I heard a man who was on the engine of the transfer track make the following statement, to wit, 'I was called out to meet this train of the Texas Central R. R. at 3 o'clock this morning.'" The tendency of this testimony was to prove that the Texas Central Railroad had made an unreasonable delay of three hours before reaching Waco. It is not necessary to inquire into its admissibility, owing to the undisputed testimony substantially to the same effect.

W. C. Tucker, a witness for appellant, gave the testimony most favorable to it. He testified that from Mathews Switch, where these cattle were taken on, to Cisco, it was 44 or 45 miles, and they were then five hours out from Mathews Switch. The testimony showed the minimum of average speed for such a train was 13 miles an hour, and they stopped at Cisco 40 or 50 minutes. At Reynolds, which was 7 or 8 miles out from Mathews Switch, a drawhead pulled out of the engine, and they had to chain the engine to the cars. Thus, up to the time of leaving Cisco, a delay had been sustained of between two and three hours. His testimony indicates other delays before arriving at Waco. In view of this testimony, and more specific testimony by plaintiff's witnesses, which was not contradicted, we think the testimony complained of was not calculated to prejudice appellant. But for such delay (the run on the Missouri, Kansas & Texas being expeditious, as was clearly shown) the cattle would have reached Ft. Worth some hours sooner, and in time for the market.

The thirty-fifth assignment is not supported by the evidence. The assignment is based on the statement of plaintiff's witness Miller: "There was no market at Ft. Worth for West's cattle at the time they arrived. They said that the market was closed." The contention is that, as there was no other testimony tending to show that the market was closed when plaintiff's cattle arrived there,

the admission of the testimony, it being hearsay, constitutes reversible error; that the cattle arrived at Ft. Worth between 12 and 1 o'clock, according to Miller, and the market did not close until 5 p. m. The cattle were delivered at 2 p. m., and there was no testimony as to difference in the morning and evening market. This above is not a fair statement of the testimony. Plaintiff West testified: "We got our cattle in the yards at Ft. Worth somewhere between 2 and 3 o'clock. I stayed around the pens until about sundown, and during that time saw no cattle sold at all." Miller testified that the cattle were not delivered until between 2 and 3 o'clock. He was certain that they never turned the cattle out of the cars until that time, and it was some time later before they were turned into the pens. Also after the cattle were in the pens no selling or buying was going on. The witness referred to by appellant as testifying to the market closing at 5 o'clock stated that, as far as packing houses were concerned, the market closed at 3 o'clock, but outside buyers kept buying as late as 5 p. m. No one testified to any transaction occurring after these cattle were delivered. Under these circumstances the assignment is overruled.

The forty-first and thirty-first assignments must also be overruled. The testimony of witnesses excluded was as to the custom or habit of this defendant and other railroads in requiring written contracts for the shipment of cattle; also as to the custom or habit of plaintiff's agent who shipped these cattle in making written contracts. This testimony was improper.

We think there was no error in instructing the jury to find for the Missouri, Kansas & Texas Railway Company of Texas. Affirmed.

SAN ANTONIO TRACTION CO. v. YOST.* (Court of Civil Appeals of Texas. May 24, 1905.)

1. STREET RAILROADS INJURIES-INSTRUCTIONS-UNAUTHORIZED ISSUES.

Where plaintiff charges negligence in defendant's permitting its rails to become charged with electricity, causing his horse to fall and throwing him from his cart, and alleges that, after the horse was on the ground, defendant's servants, not having the car under control, ran it against plaintiff, an instruction to find for plaintiff if the jury believe that defendant's car collided with plaintiff's cart by the negligence of defendant's employés, and such negligence was the proximate cause of the collision, or if the car was being operated with ordinary care, but plaintiff was on defendant's track in a position of peril, and defendant's employés knew his position of peril, and failed to exercise ordinary care to avoid injuring him, is erroneous, as not presenting the issues involved.

2. APPEAL-FAILURE TO ASSIGN ERROR-EFFECT FUNDAMENTAL ERRORS.

Where an instruction authorizes a finding for plaintiff on an issue not made by the plead*Rehearing denied June 28, 1905.

ing, the error, though not assigned, is so fundamental as to require the court to act on it.

Appeal from Bexar County Court; R. B. Green, Judge.

Action by Fred Yost against the San Antonio Traction Company. From a judgment for plaintiff, defendant appeals. Reversed.

Geo. B. Taliaferro, for appellant. J. R. Norton, for appellee.

NEILL, J. This is a suit by appellee against appellant for damages. The plaintiff, after averring that while he was passing along a public street of the city of San Antonio he was thrown from the cart in which he was riding, by the negligence of defendant, in his petition states the negligence as follows:

"Plaintiff alleges that the defendant was negligent in this: that it failed to prevent said rails from becoming charged with electricity, so as to render them dangerous for horses or pedestrians to step upon, and being shocked thereby, as was its duty to do, and negligently caused said rails to become charged in a dangerous manner, and in such manner as to cause the horse drawing the cart in which plaintiff was riding to fall when stepping on same, which resulted in throwing plaintiff out of said cart upon the street, and said negligence proximately caused plaintiff's aforesaid injuries.

"Plaintiff further alleges that the defendant was negligent in this: that its operatives and employés in charge of one of its electrical cars, which was at that time being operated upon the track upon Austin street, failed to control said car, and failed to exercise proper care to prevent running said car against said cart and plaintiff after said horse had become shocked and had fallen, and plaintiff had been thrown out of said cart, as was his duty to do, and negligently ran said car upon and against said cart and against plaintiff, and said negligence also proximately caused plaintiff's aforesaid injuries."

It will be observed that in the first paragraph quoted the negligence charged is defendant's permitting its rails to be charged with electricity in such manner as to cause the horse to fall, resulting in throwing plaintiff from the cart in the street and injuring him. In other words, permitting the rails to be charged with electricity was defendant's negligence, and the fall of the horse, and plaintiff's being thrown from the cart and injured, its consequences. In the second paragraph the negligence charged is the failure of defendant's servants to control the car, and their failure to exercise proper care to prevent running the car against the cart and plaintiff after the horse had been shocked and fallen, and plaintiff had been thrown out of said cart, and in running the car against the cart and the plaintiff. In other words, after the horse had been shocked

and plaintiff thrown on the ground, defendant's servants operating the car, not having it under control, in their failure to exercise proper care, ran the car against the cart and plaintiff, thereby causing his injuries. In its charge the court instructed the jury, if they believed from the evidence that a car of defendant collided with a cart in which plaintiff was riding, and that such collision was caused by the negligence of its employés in control of the car, and that such negligence was the proximate cause of the collision and resulted in plaintiff's injury, then to find for him; that if they believed from the evidence that the car of defendant was being operated with ordinary care, yet, if they believed plaintiff was on defendant's track in a position of peril, and defendant's employés knew his position of peril, and failed to exercise ordinary care to avoid injuring him, then to find for plaintiff. So much of the charge as we have in substance recited presents the only issues upon which the jury were authorized to find for plaintiff. In another paragraph the jury were told, if they believed from the evidence the plaintiff was not thrown out of his cart by reason of a collision with defendant's car, to find for the defendant. It is thus seen there was no presentation by the charge of the grounds of negligence alleged by plaintiff as his cause of action, but that grounds of negligence averred were expressly withdrawn, and entirely different facts from those averred were submitted, and the jury instructed to find for him upon them if they believed from the evidence they were proven. Unless the plaintiff was thrown from his cart by the fall of his horse, caused either from the animals being shocked by a current of electricity with which the rails of the track were charged through defendant's negligence, and plaintiff was thereby injured, or while, after being thrown from this cart by reason of the fall of the horse, caused by a shock of electricity from the rails (whether by defendant's said negligence or otherwise), he was on the ground, defendant's servants in charge of the car negligently ran it against the cart on plaintiff, and thereby injured him, he could not, under the allegations in his petition, legally recover damages for his injuries. There was no allegation in the petition that plaintiff was thrown from his cart and injured by a collision, or that he was in a position of peril which was discovered by appellant's servants operating the car in time, by the exercise of the means at hand, to have avoided injuring him, and that his injury was caused by their negligent failure to exercise such means. Yet these were the grounds of negligence submitted, to the exclusion of those alleged, and upon which the verdict was found and the judgment rests. It is error to instruct a jury to find for a plaintiff upon an issue not made by his pleadings. While this error is not assigned by the ap

pellant, it is apparent upon the face of the record, and from its very nature is so fundamental as to require the court to notice and act upon it. For, as is held by the Supreme Court in Wilson v. Johnson, 94 Tex. 276, 60 S. W. 242, "an error apparent upon the face of the record," which may be considered without assignment, is a "prominent error. either fundamental in character, or determining a question upon which the very right of the case depends." Of such prominence is the error in the charge.

The errors assigned are such as are not likely to arise on another trial.

For reason of the error indicated, the judgment of the county court is reversed, and the cause remanded.

LASATER v. FIRST NAT. BANK OF
JACKSBORO.

(Court of Civil Appeals of Texas. July 1, 1905.) USURY-RECOVERY OF PENALTY-PAYMENT BY SURETY.

A discharge of a note by a surety by giving his own note in renewal thereof does not operate as a payment by the principal in such sense as to entitle him to avail himself of the federal statute authorizing the recovery from a national bank of twice the amount of usurious interest paid to the bank, nor does the subsequent payment of the renewal note by the surety operate to give the principal a cause of action under such statute.

[Ed. Note. For cases in point, see vol. 6, Cent. Dig. Banks and Banking, § 1046; vol. 40, Cent. Dig. Principal and Surety, §§ 492, 494.]

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

Remand from the Supreme Court of the United States.

Wayne H. Lasater and Howard Martin, for appellant. Thos. D. Sporer, for appellee.

SPEER, J. This suit is again before us upon a judgment of the Supreme Court of the United States reversing the judgment of reversal and rendition heretofore rendered in this court on November 8, 1902. For a full statement of the nature of the case, and of the facts material to the questions involved, see the opinions of this court and of the Supreme Court on certified questions in 72 9. W. 1054, 1057.

In the opinion of this court deciding the case upon the original hearing, what we consider to be the most material question involved was disposed of in the following language: "The payment made by A. M. Lasater, the surety, who purchased the mortgaged cattle from appellant, and in consideration thereof agreed to pay off the note to the bank, and in discharge thereof executed his own note, which was afterward paid, was in law a payment by appellant in property, and the same as payment in money.' Upon a motion for rehearing being filed by the bank, this court certified to the Suprem

Court for answer the questions shown in the certificate, as incorporated in the Supreme Court opinion already referred to. The Supreme Court answered generally that the opinion of this court correctly decided the several points presented. This court thereupon overruled the motion for rehearing, whereupon the appellee removed the cause by writ of error to the United States Supreme Court, where a judgment was rendered reversing the judgment of this court, and remanding the cause for further proceedings not inconsistent with that opinion. National Bank of Jacksboro v. J. L. Lasater, 196 U. S. 115, 25 Sup. Ct. 206, 49 L. Ed. 408.

First

The question decided by this court in the language heretofore quoted, and by the Supreme Court upon the certificate, is thus disposed of by Mr. Justice Brewer in the following language: "The mere discharge by A. M. Lasater of the note executed by himself and J. L. Lasater by giving his own note in renewal thereof would not uphold a recovery from the bank on account of usurious interest in the former note. Brown v. Marion National Bank, 169 U. S. 416, 42 L. Ed. 801, 18 Sup. Ct. 390. The payment contemplated by the statute is an actual payment, and not a further promise to pay, and was not made until the bank in June, 1901, received its money. Prior to the renewal by A. M. Lasater, in October, 1900, there were only two or three small cash payments on the indebtedness." It was only upon the theory that the discharge by A. M. Lasater of the note executed by himself and J. L. Lasater, by giving his own note in renewal thereof, "was in law a payment by appellant in property, and the same as payment in money," that this court in the first place reversed the judgment of the district court and rendered one in favor of appellant. But this construction of the federal statute being held to be erroneous by the Supreme Court of the United States, it follows that, if appellant ever had a cause of action for usurious interest paid the bank, it was by reason of the subsequent actual payment made by A. M. Lasater in June, 1901. This court never intended to hold, nor do we think it should be held, that appellant can avail himself of this final payment made by A. M. Lasater. If appellant ever paid usurious interest to appellee, it was on the 17th day of October, 1900, at the time when A. M. Lasater took up appellant's note by substituting his own. Clearly, appellant's debt was discharged at that time. He never afterward owed the appellee anything, and the appellee never took, received, reserved, or charged any interest whatever, so far as he is concerned. When A. M. Lasater, in June, 1901, paid the bank the sum of $4,457, he paid his own debt, and not appellant's. Then, if the transaction of October 17th, whereby appellant's indebtedness to the bank was discharged and he was released, would not uphold a recovery from the bank, it is clear to our minds that, irrespective of the

question of fraud upon his part in withholding from his trustee in bankruptcy notice of the existence of this claim, upon which the cause was decided in the United States Supreme Court, appellant has no case, and the judgment of the district court should be affirmed.

For this reason, and in obedience to the mandate of the United States Supreme Court, the judgment of the district court is in all things affirmed.

MORONEY v. COOMBES et al.* (Court of Civil Appeals of Texas. June 3, 1905.)

1. PRINCIPAL AND SURETY - DISCHARGE OF SURETY-EXTENSION OF TIME-EVIDENCE.

In an action on notes and seeking a foreclosure of a mortgage securing them, evidence that a part of the consideration of the mortgage was a contemporaneous parol agreement by plaintiff with the principal, made without the knowledge of the sureties on the notes, to extend the time of payment of the notes, was admissible as affecting the liability of the sureties.

2. SAME CONTRADICTING WRITING.

The evidence was not inadmissible on the ground that it varied or contradicted an unambiguous written contract.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by W. J. Moroney against Z. E. Coombes and others. From a judgment for plaintiff as against Z. E. Coombes, and in favor of the other defendants, plaintiff appeals. Affirmed.

C. L. Simpson, for appellant. W. A. Hudson, for appellees Hinton and Brannin.

TALBOT, J. Plaintiff, W. J. Moroney, brought suit against defendants, Z. E. Coombes, Jr., Charles Coombes, W. N. Coombes, J. W. Hinton, and A. E. Brannin, to recover the balance due on three notes executed by Z. E. Coombes, Jr., as principal, and Charles E. Coombes, J. W. Hinton, and A. E. Brannin as sureties, payable to the order of Martin Auer, and indorsed by Auer to plaintiff, and to foreclose a mortgage securing said notes executed by Z. E. Coombes, Jr., to plaintiff on a block of land in Benjamin, Tex. W. N. Coombes had waived a prior lien in favor of plaintiff, and was made a party merely to perfect the foreclosure. Charles E. Coombes established the defense of minority, and on this point no question is raised on this appeal. Defendant Z. E. Coombes, Jr., made default, W. N. Coombes filed a disclaimer, and defendants Brannin, Hinton, and Charles E. Coombes pleaded, among other things, in substance, that they were sureties on said notes, and that a part of the consideration for said mortgage was the contemporaneous parol agreement of plaintiff that the pay

*Rehearing denied June 24, 1905, and writ of error denied by Supreme Court.

ment of said notes should be extended for one year, and that said sureties should be discharged, and that said parol agreement was made without the knowledge or consent of said sureties. A trial by jury resulted in a verdict and judgment in favor of plaintiff against Z. E. Coombes, Jr., for the sum of $810, with a foreclosure of the mortgage lien, and in favor of defendants Brannin, Hinton, and Charles E. Coombes, that plaintiff take nothing as to them, and that they recover their costs, from which judgment appellant has appealed.

The assignments of error present but one question for our determination. Testimony was offered by defendants Brannin, Hinton, and Charles E. Coombes in support of their plea that, as a part of the consideration for the mortgage sought to be foreclosed, appellant, at the time of the execution of said mortgage, entered into an agreement with Z. E. Coombes, Jr., the principal obligor on the notes sued on, extending the time of the payment of said notes and discharging these defendants from all liability as sureties thereon, without their consent. Appellant objected to the admission of this evidence on the ground that it varied the terms of a valid written instrument. The objection was overruled, and this action of the court is assigned as error. We think there was no error in the admission of this testimony. It is settled law that the liability of a surety or guarantor is limited to and controlled by the very terms of the contract out of which his obligation arises. If the contract be materially changed by the prin cipals thereto without his consent, he will be released, without regard to whether he has been benefited or prejudiced by such change, and it follows that parol evidence is admissible under proper pleadings to show such change. Ryan v. Morton, 65 Tex. 260; Stafford v. Christian (Tex. Civ. App.) 79 S. W. 595; Lane v. Scott, 57 Tex. 367. Falling within the above rule is a contract by the principal obligor in a promissory note extending the time of the payment of such note upon a valuable consideration, without the consent of the surety sought to be held. Such extension creates a new and binding contract, and is such an alteration of the old contract as will release a surety thereon, if made without his consent.

Appellant's further contention, that the testimony was inadmissible to show that a part of the consideration for the execution of the mortgage sought to be foreclosed was a contemporaneous parol agreement between the principals to the note sued on that the defendants as sureties thereon should be discharged, cannot be sustained. There is nothing upon the face of the mortgage that discloses such an agreement, but the establishment of such an additional consideration by extraneous proof does not violate the rule which prohibits the introduction of parol evidence to vary or contradict an unambig

uous written contract. To this effect is the holding of the Court of Civil Appeals of the Third District in the case of Martin et al. v. Rotan Grocery Co., 66 S. W. 212, in which a writ of error was denied by our Supreme Court. The facts in that case are so nearly identical with the facts in the case at bar that we think they are not distinguishable on principle. In such case it is not necessary to allege fraud, accident, or mistake in order to render such testimony admissible. The testimony upon the issue was conflicting, but the verdict of the jury embraces the finding that the payment of the notes was extended and sureties discharged as alleged, and the evidence sustains such findings.

There was no error, either in the admission of the evidence objected to or the charge of the court, submitting the issues to the jury, and the judgment of the court below is affirmed.

SANGER BROS. v. BRANDON. (Court of Civil Appeals of Texas. May 31, 1905.) WRONGFUL ATTACHMENT-UNAUTHORIZED ISSUANCE OF WRIT-RATIFICATION LIABILITY OF PLAINTIFFS.

Where defendant's property was wrongfully seized under a writ purporting to be signed by the justice before whom the action was commenced, and plaintiffs ratified and adopted the issuance and execution of the writ, they were liable for the wrongful conversion, though the writ was not in fact signed by the justice or by one having authority.

[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attachment, § 1328.]

Appeal from Hill County Court; L. C. Hill, Judge.

Action by Sanger Bros. against T. H. Brandon, in which defendant filed a plea of reconvention. From a judgment for defendant on the plea, plaintiffs appeal. Affirmed.

A. P. McKinnon, for appellants. Derden & Killaugh, for appellee.

KEY, J. This suit originated in a justice of the peace court, and was appealed to the county court. Acting under a writ signed with the name of the justice of the peace, the constable seized certain personal property belonging to the defendant, and the latter filed a plea in reconvention to recover damages on account of such seizure. Sanger Bros., the plaintiffs in the suit, dismissed the same, and the case was tried on the plea in reconvention, resulting in a judgment for the defendant for $49.80, and the plaintiffs have appealed.

There is no statement of facts in the transcript, but the trial judge filed elaborate conclusions of fact, and it is contended that such findings fail to show that Sanger Bros. were responsible for the seizure of the de fendant's property under the alleged wr