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town of Conroe, which is the county site of Montgomery county, was established after appellant's purchase, and is partly on the Lang survey. It is situated at the intersection of the roads of the two defendants. In 1888 or 1889 appellant platted part of the Lang survey into town lots, and began to sell them according to the plat. This plat recognized the right of way of the Great Northern as having a width of 65 feet from

of

be decided in the case cited, it is inferentially held that prior to the passage of the act a charter authorizing the construction of a railway through a country held in part by private ownership and in part by the state, the general laws providing for acquisition of right of way from private owners, but leaving the company powerless against the lands of the state, impliedly granted the right to construct through and over the public domain. The grant is so

abutting on the right of way according to necessary to the exercise of the general pow

that width. Plaintiff testified that he saw er conferred it is inevitably carried by the the road in 1872. It was completed and the general terms of the grant. This is in acright of way cleared at that time. It has cord with the elementary rule of construction been kept cleared ever since in the general that a power necessary to the exercise of a maintenance of the line, but a little wider power already granted will be implied. We now than then. The general width to which are of opinion, therefore, that by its charter the right of way bas been cleared and main- the Great Northern Company acquired the tained through the Lang survey for years right to enter upon and appropriate so much is at least 130 feet. Whether the possession of the public domain over which its route of this, uninclosed as it was, was of such was projected as was necessary for its right continuous character as to sustain the plea of way, not to exceed the prescribed width, of limitation to the entire width, may well and that, having done so, the width actually be doubted, but that the railway company, in appropriated was not affected by the subsethe exercise of its charter powers, took pos- quent grant by the state of the Lang survey. session of a right of way at least the width By the description in the grant the granawarded by the court, is to our minds es- tees had actual notice of the railway comtablished beyond controversy. This being pany's existence, and its powers, and of the true, if the authority given by the state to fact that the Wilson Lang grant had been construct the road through Montgomery located along its line. They took subject to county, and to that end to acquire a right the rights acquired by the company. As to of way not to exceed 50 yards in width, car- the width of the right of way thus approried with it either directly or inferentially priated, we think the proof is undisputed a grant of right of way through and over that it amounted to at least as much as was such tracts on its route as were yet a part awarded to defendants by the judgment of of the public domain, the judgment should the court. In this view of the case all erbe affirmed whatever may be the state of the rors become harmless. We therefore do not proof on the issue of limitation. Article notice the other assignments. Because, un4423 of the Revised Statutes, which became der the facts the judgment could not have a law in 1879, expressly gave to railway been otherwise, it is in all things affirmed. companies a right of way through the public domain. Prior to that time there had been court's disposition of the question of costs no express provision on the subject; so it is overruled. follows that the defendants are unaided by Affirmed. the article cited, or anything of a like nature preceding it. As stated, however, in Tex. Cen. Ry. Co. v. Bowman (Tex. Sup.) 79 8. W. 296: “The general laws which had

HANAWAY v. WISEMAN. been enacted regulating railways thereto- (Court of Civil Appeals of Texas. June 3, fore seem to have assumed, rather than to

1905.) have expressly declared, the existence of the 1. CONVERSION-DAMAGES-INSTRUCTIONS. right over the lands of the state, for the Where, in an action for conversion of corn, provisions for the acquisition of such rights

it was conceded that defendant was the owner

of a one-third of the stack of corn, an instrucby purchase or condemnation applied only

tion that the jury should compensate plaintiff to private property. The general law passed for the value of "the corn," was not erroneous. in 1876 for the chartering of railway corpo- 2. SAME-INSTRUCTIONS. rations omitted any express provision as to An instruction that the jury should "comright of way upon lands belonging to the pensate" plaintiff for the value of the corn constate, but, as before, regulated the acquisi

verted, was not erroneous, though not literally

in the approved form. tion of such right over private property." Justice Williams, after this comment upon Appeal from District Court, Knox County ; the state of the law, proceeds to show that J. M. Morgan, Judge. the absence of any provision for the acquisi- Action by J. M. Wiseman against R. W. tion of right of way over public properties | Hanaway. From a judgment for plaintiff, pervaded all general legislation on the sub- defendant appeals. Affirmed. ject until the Revision of 1879. While it is pot, expressly held, nor was it necessary to

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

Le berhe tross-assignment assalling the trial

Montgomery & Hughes and D. J. Brooker- requiring of them a finding for the value of son, for appellant. Glasgow & Kenan, Chas. the entire crop; particularly in view of the E. Coombes, and Sam J. Hunter, for appellee. special charge given by the court at appel

lant's request, “that whatever quantity of CONNER, C. J. This is an appeal from a kaffir corn or straw was the property of J. D. judgment in appellee's favor for the sum of Gray became (when the land referred to in $300 as actual damages for the conversion of plaintiff's petition was sold to defendant) the certain kasfir corn and straw. The facts are property of the defendant, and you can find that on December 2, 1901, appellant sold to nothing for plaintiff as to said property." one J. D. Gray a section of land upon credit, The further contention that the charge "did the payments being made to mature one, two, not give the jury the correct measure of three, four, and five years after that date, damages, and left it to the jury to adopt such the vendor's lien being retained to secure the measure as they saw proper,” presents a difnotes for the deferred payments. Gray failed ficulty more apparent than real. While the to pay anything on the land, and in Novem- | charge is not literally in the form approved ber, 1902, Hanaway filed suit in the proper by the decisions, we yet think it substantially court to collect his debt and foreclose said correct. As before stated, the jury was therelien. Gray was served with citation in Jan- by limited to "compensation" for the damages uary, 1903, and Hanaway obtained judgment done appellee. This is the true basis for the on April 7, 1903, and a foreclosure of lien, rule, and there is nothing in the record to inwith order of sale, by virtue of which appel- dicate that the jury entertained any other lant in July, 1903, again became the owner, thought. It is true the evidence as to the and was placed in possession of said section. value of the kafsir corn and straw was conIn October, 1902, appellee rented part of the flicting, but appellee's testimony abundantly land in controversy from Gray for the year sustains the verdict. Indeed, such testimony beginning January 1, 1903, with the agree- fixed the value of said property in the aggrement that he was to pay one-third of the

gate at $800 or $900. kaffir corn in the stack to Gray as rent, there There being no other assignments, and findbeing no contract as to straw. The kaffir ing that the evidence sustain the material corn was planted in the latter part of April, allegations of appellee's petition and the ver1903, and was ready for harvest in the latter dict of the jury, it is ordered that the judgpart of September of that year, at which time ment be affirmed. it further appears that appellant caused appellee's arrest upon complaint filed charging criminal offenses, and thereafter converted

HILDEBRAND V. HEAD. the kaffir corn and a certain stack of straw

(Court of Civil Appeals of Texas. June 7, to his own use. Appellee, in his petition, also

1905.) alleged that the prosecution instituted against

1. SET-OFF AND COUNTERCLAIM-EFFECT OF him upon affidavits of appellant were mali- JUDGMENT. cious, and he prayed for the recovery of dam- Plaintiff recovered a judgment against deages therefor. But from the verdict of the fendant for a certain sum and for the fore jury, construed in the light of the court's

closure of a landlord's lien on certain syrup in

plaintiff's possession. Defendant in the same charge, it plainly appears that the jury found

action set up a claim against plaintiff for the against appellee on the issue of damages for wrongful suing out of an injunction, and the the alleged malicious prosecution. The first

court charged that defendant was entitled to

recover, if at all, the reasonable market value and second assignments of error therefore

of the syrup that could have been made out of will be overruled without discussion, inas- the cane by the plaintiff, less the cost of conmuch as they relate to that issue alone.

verting it into syrup. The jury found for de

fendant for a sum less than that found in faThe remaining assignments (the third and

vor of plaintiff. Held, that a judgment for fourth) complain of the court's charge; but

plaintiff for the difference made the syrup the we do not think the objections thereto main- property of plaintiff, so that it was error to tainable. The court charged the jury, in sub

adjudge a lien on it and require it to be sold to

satisfy the judgment. stance, that, if they found the facts as here

2. APPEAL-THEORY OF TRIAL. inbefore stated, they should find for appellee,

Where plaintiff's claim to a certain item and “assess bis actual damages at such sum of damage was conditioned at trial on the jury as you (they] consider from the evidence will finding in his favor upon another issue, and the

jury found against him, he was not entitled to reasonably compensate him for the value of

claim the item of damage mentioned on appeal. said kaffir corn and wheat straw." Appellant insists that it is undisputed that he, as

Appeal from Bexar County Court; Robt. owner, was entitled to one-third of the kaffir B. Green, Judge. corn as rent, and that the charge quoted per

Action by H. E. Hildebrand against G. M. mitted the jury to find against him for the

Head. From a judgment for plaintiff, he apvalue of the whole. Appellee testified that

peals. Reformed and affirmed. “the rent was Hanaway's," and that such was Cobbs & Hildebrand, for appellant. C. O. the fact is not disputed. The charge limit- Clamp and Frank J. Bosshardt, for appellee. ing, as it does, appellee's damages to compensation merely, we think it quite improb- JAMES, C. J. This appeal is from a judg

le that the jury understood the charge as ment rendered upon a verdict which was in

nership issue has been fully developed, the Court of Appeals will not remand, but render judgment for the executrix.

Appeal from Coleman County Court; B. F. Rose, Judge.

Action by the Walker-Smith Company against Cornelia E. Rascoe, as executrix of the estate of W. P. Rascoe, deceased. From a judgment for plaintiff, defendant Cornelia E. Rascoe appeals. Affirmed as to the other defendants, and reversed and rendered as to Cornelia E. Rascoe.

F. L. Snodgrass, for appellant G. N. Harrison, for appellees.

favor of appellant (plaintiff) for $169.66 and interest, and for foreclosure of landlord's lien on certain syrup in plaintiff's possession, and in favor of defendant for the sum of $139.20 actual damages. The latter sum was for the damages sustained by defendant for the wrongful suing out of an injunction, which the court had instructed the jury would consist of what the evidence showed was the reasonable market value of the syrup that could have reasonably been made out of the cane by plaintiff, less the reasonable cost of converting it into syrup. Therefore the $139.20 damages was the finding of the net value of the syrup. When this was deducted from the sum of $169.66, found in favor of plaintiff (which was an admitted indebtedness from defendant to plaintiff), and judgment rendered for the difference, $43.18, defendant was compensated for the syrup, and the effect of the deduction was to pay defendant for the syrup and made it the property of plaintiff. It was therefore manifest error to adjudge plaintiff a lien on the syrup, and require it to be sold to satisfy the judgment for the difference. Hence we conclude that that part of the decree ordering the syrup sold to satisfy plaintiff's judgment for $43.18 and interest thereon, as under execution, and, after paying of said judgment, directing the officer to pay the excess over to defendant, should be expunged, and instead that the plaintiff be declared entitled to the syrup.

We think plaintiff is not entitled to claim in this court that he should be allowed a further sum of $76.30 for hauling the cane to the mill. The only charge by which he requested that matter to be submitted was conditioned on the jury finding in his favor upon the issue of wrongful suing out of the injunction. The jury, however, found against him on that issue.

Appellant has filed here a paper consenting to waive his assignments of error in case we hold as above. Therefore we do not notice them.

Appellee has a cross-assignment, which we think is not well founded. We fail to see wherein the written contract and the previous oral agreement show any substantial difference in the rights of the parties.

The judgment will be reformed as indicated, and, as reformed, will be affirmed.

FISHER, C. J. The appellee WalkerSmith Company brought this suit to recover on two promissory notes executed August 4, 1902, each for the sum of $250, signed by T. W. White & Co., by T. W. White, The suit was against the partnership of T. W. White & Co., and also T. W. White individually, and against the appellant Mrs. Rascoe, as executrix of the estate of W. P. Rascoe, deceased, claiming that W. P. Rascoe was during his lifetime a member of the firm of T. W. White & Co. T. W. White filed no answer. The appellant, as executrix, answered by general denial and special plea, denying the existence of any partnership between W. P. Rascoe and White. Judg. ment in the court below was against T. W White and T. W. White & Co., in favor of the appellees, for the amount sued for and costs of suit, and also against the appellant Mrs. Rascoe, as executrix of the estate of W. P. Rascoe, for the amount sued for. Mrs. Rascoe alone has appealed.

At a previous day of this term of the court we certified to the Supreme Court the question whether or not the evidence of witness White, as to statements and transactions that occurred between him and W. P. Rascoe, deceased, was admissible, as against appellant Mrs. Rascoe, to establish the fact of partnership. The Supreme Court, in answering the question, held that such testimony was not admissible. 86 S. W. 728.

The principal question in the case is whether or not W. P. Rascoe was ever a member of the firm of T. W. White & Co. The appellees contend that he was a member of the firm before the notes in question were executed, and that the notes were given for the purchase price of goods sold by appellees to T. W. White & Co., and that, if there was ever a dissolution of the firm, the appellees had no notice of that fact at the time the goods were sold and the notes executed, and that, if Rascoe was not in fact a member of the firm, he permitted T. W. White to represent that he was a member, and the appellees, acting upon such representation and holding out, sold the goods to T. W. White & Co. upon the basis that Rascoe was a member of the firm. There are a number of assignments of error in appellant's brief

RASCOE v. WALKER-SMITH CO. et al. (Court of Civil Appeals of Texas. May 17,

1903.) REVERSAL-REMANDING CAUSE.

In a suit against a partnership and the executrix of a decedent, alleged to have been a partner when the notes sued on were cuted, where the Supreme Court, in answer to a certified question, holds that the transactions occurring between a member of the partnership and decedent are not admissible against the executrix, and the remaining evidence tends to show decedent was not a partner, and the part

exe

court and in this court against the appellee Walker-Smith Company. The judgment in favor of appellees against T. W. White and T. W. White & Co. is affirmed.

Affirmed in part, and in part reversed and rendered.

which are not necessary to be considered, because, in view of the ruling of the Supreme Court upon the question certified, we have concluded to reverse and render so much of the judgment as affects the appellant Mrs Rascoe. When we eliminate the evidence of White as to transactions and statements that occurred between him and Rascoe relating to the question of partnership, there is very little evidence, if any, of any importance left in the case upon that subject. In fact, the balance of the evidence upon the subject of partnersbip, as we construe it, tends to show that Rascoe was never a member of the firm of T. W. White & Co. It is true, some letters passed between the Walker-Smith Company and Rascoe with reference to signing certain notes, which notes are not those sued upon. The letters from the WalkerSmith Company to Rascoe were merely to the effect that certain notes were signed by White & Co., but that they desired the personal signature of Rascoe. Rascoe replied that he would sign, and as a matter of fact he did sign the notes individually. There is no intimation in the correspondence between these parties of any partnership between White and Rascoe; and it is believed that the fact evidenced by these letters has a stronger tendency to establish the fact that there was no partnership than to prove that a partnership existed; for if the WalkerSmith Company relied upon the representations of White that Rascoe was a member of the firm, and relied upon the fact that Rascoe bad held himself out as a member of the firm, and that the Walker-Smith Company believed that he was a member of the firm, or that Rascoe in fact was a member of the firm, it is singular that the Walker-Smith Company would desire, in addition to the signature of the firm, the individual signature of Rascoe; and if Rascoe knew that he was held out as a member of the firm, or regarded that he was a member of the firm, it is also singular that he would, in addition to the execution of the note by the firm, individually sign the same. And it is further significant that in all this correspondence there is no statement or intimation whatever from either party tending to show that Rascoe was ever a member of the firm, As said before, the remaining evidence in the record on the issue of partnership, excluding that of White, tends to show that Rascoe was not a member of the firm.

On the issue of partnership, the case seems to have been fully developed, and that all evidence accessible on that subject was introduced. Therefore we see no occasion to reverse and remand, but will here reverse and render judgment in favor of the appellant Mrs. Rascoe to the effect that the appellee Walker-Smith Company take nothing by their suit against her individually or as executrix, and that she go hence fully discharged with a judgment in her favor for all costs incurred in her behalf in the trial

HARDIN v. ST. LOUIS SOUTHWESTERN

RY. CO. OF TEXAS.* (Court of Civil Appeals of Texas. May 17,

1905.) 1. CARRIERS NEGLIGENCE ACTION IN STRUCTIONS.

Where plaintiff alleged a partnership between defendant railroad company and another in carrying plaintiff's wife, and sought damages for her death from a failure on the part of the railroads to keep the car warm, and there was evidence of such negligence on the part of both roads, an instruction that, in order for plaintiff to recover, the burden was on him to show nego ligence of defendant, was reversible error, notwithstanding an instruction making defendant responsible for the negligence of both roads. 2. SAME-EVIDENCE-ADMISSIBILITY.

Defendant might, under the general issue, show that the wife, at the time she sustained the injuries, had a disease which would have caused her death as soon as she did die, independent of the injuries. 3. SAME-DECLARATIONS.

The declarations of the wife concerning her condition were admissible against plaintiff. 4. SAME-EVIDENCE-STATEMENTS AS TO MANNER OF INJURY.

In an action for injuries, statements by the person injured to her physician as to how she was injured were not admissible in favor of plaintiff. 5. SAME EVIDENCE – CREDIBILITY OF Wit. NESSES.

The belief or opinion of a witness to the effect that certain other persons would swear to the truth was not admissible.

Appeal from District Court, Hunt County ; H. C. Connor, Judge.

Action by J. H. Hardin against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Evans & Elder, for appellant. E. B. Perkins and Templeton, Crosby & Dinsmore, for appellee.

FISHER, O. J. This is a suit for damages by Hardin against the St. Louis Southwestern Railway Company of Texas for personal injuries to himself, and for injuries resulting in the death of his wife. Plaintiff substantially alleged as his cause of action that on 'the 20th of December, 1900, he purchased from the defendant at Josephine, Tex., two first-class tickets (one for himself and one for his wife) to Perryville, Tenn., via Texarkana and Memphis, and that they boarded said train as passengers on the 20th of December, 1900; that the weather was cold and disagreeable throughout the trip; that the defendant was a common carrier of passengers for hire from Josephine to Tex

*Rehearing denied June 28, 1905.

arkana, Tex.; and that the St. Louis South- to show by a preponderance of the evidence western Railway Company was a common that the defendant was negligent as alleged, carrier of passengers for hire 'from Texar- and that such negligence proximately caused kana to Memphis, Tenn.; and he alleged a or. hastened the death of his wife, as hereinjoint operation and partnership between after explained." these two railway companies in undertaking The special charge requested, and which to carry plaintiff and his wife as passengers was given, and which is complained of, is as from Josephine, Tex., to Memphis, Tenn. follows: Plaintiff alleged negligence on the part of "In view of the court's charge, counsel for both railway companies in failing to keep defendant request the court to instruct the their coaches warm from Josephine to Mem- jury as follows: The burden of the proof is phis, and that, in consequence of such negli- upon the plaintiff to show by the evidence gence, plaintiff and his wife each suffered that defendant's servants were negligent, from cold and exposure while being so car- and that such negligence was the proximate ried over the lines of the two companies, cause of the death of Mrs. Edna Hardin, resulting in personal discomfort, pain, and the wife of plaintiff, or that the life of Mrs. suffering to each, and incurring expense to Edna Hardin was shortened, and that such plaintiff, and resulting in the death of his shortening of her life was caused by the wife, and incurring expense during her sick- negligence of defendant's servants." ness, for all of which he claims damages in The court, in its general charge, in effect, the sum of $20,800. Verdict and judgment instructed the jury that the appellee railresulted in favor of the railway company. way company would be responsible for the

Appellant's first and second assignments negligence of both railway companies, and of error will be considered together. The this charge, in view of the pleadings and first assignment complains of the action of evidence, was correct; but it practically conthe trial court in giving charge No. 2 re- flicts with the special charge No. 2, as set quested by appellee, on the ground that the out, and also the first paragraph of the gensame is contradictory of the main charge, eral charge of the trial court as above statand was calculated to mislead the jury, in ed. These two charges substantially inwithdrawing from their consideration the struct the jury that, in order for the apnegligence of the servants of the St. Louis pellant to make his case, the burden restSouthwestern Railway Company, and be- ed upon him to establish the negligence of cause the testimony shows and raises the is. the defendant—that is, that the St. Louis sue of the failure to furnish fires sufficient Southwestern Railway Company of Texas to warm the coaches in which the plaintiff was guilty of the negligence charged-when, and his wife were passengers, not only on under the pleadings and evidence, the plainthe line of the St. Louis Southwestern Rail- tiff would have been entitled to recover on way Company of Texas, but also on the line the proof of facts tending to show negligence of the St. Louis Southwestern Railway on the part of the St. Louis Southwestern Company, which is alleged to run from Tex- Railway Company. The jury might have arkana to Memphis. The second assign- considered that the evidence was insufficient ment of error complains of the first para- to have established the negligence of the apgraph of the charge of the court, wherein pellee railway company, or that the neglithe jury are instructed that the burden was gence, if any, of that company was not the upon the plaintiff to show by a preponder- proximate cause of the death of appellant's ance of the evidence that the defendant was wife, but may have considered that the evinegligent, as alleged, and that such negli- dence against the St. Louis Southwestern gence proximately caused or hastened the Railway Company was sufficient to show death of his wife. There is evidence in the negligence which was the proximate cause record which tends to show that, by reason of the death of Mrs. Hardin. We are of the of the negligence alleged upon the part | opinion that these assignments are well takof the two roads, the wife sustained the en, and, for the error in the respect pointed injuries that resulted in her death; and out, the judgment will be reversed. there is evidence to the effect that each of The third assignment of error complains the roads failed to provide fires sufficient to of the sixth paragraph of the general charge warm and heat the cars in which the plain- of the court, which also contained a statetiff and his wife were riding as passengers, ment that the negligence of the defendant agthough the weather was very cold and dis- gravated the disease, when, as before stated, agreeable. The petition of the plaintiff also the charge should have been so framed as alleged that there was a partnership between to submit the negligence of both railway the two roads, and substantially alleged that companies; and in this respect paragraph 6 by reason of such partnership the appellee of the charge is erroneous. was responsible for the negligence commit- There are some other objections to this ted by both roads, and there was no denial charge. One is to the effect that the charge of the partnership charged in the petition. is without pleadings to support it. In anThe first paragraph of the charge of the swer to this, we simply state that we are of court which is complained of is as follows: the opinion that it was permissible, under "The burden of proof is upon the plaintiff the general issue, for the railway company

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