does not afford ground for a reversal of the Judgment.

Aside from this question, however, It Is urged that the jury were not warranted by the testimony in finding that the sale was fraudulent We cannot so hold. When a verdict ia considered on appeal, It is not essential that It be supported by a preponderance of testimony. We cannot say that there is no testimony in the record from which the conclusion of fraud may be deduced. After a careful consideration of all the points presented in appellants' brief, our conclusion Is that the judgment appealed from must be affirmed.

BAIRD et al. T. PATLLLO et al.

(Court of Civil Appeals of Texas. Jan. 17, 1894.)

Tkfspass TO Try Title Evidencb Makutkd Woman Liability On Covenant o» WiBHantt.

1. In trespass to try title by the heirs of P., plaintiffs established title from the state, under a patent, of an unlocated balance of "certificate No. 18/77," issued September 17, 1872. Held, that a deed by the administrator of P.'s estate to S., which described the property conveyed as the unconditional headright certificate granted by the county court "of R. county, at the May term thereof, for 320 acres of land, third class, and numbered 432," and mesne conveyances from S. to defendants, were not admissible to show title.

2. A deed of one of defendants' mediate grantors, to which plainti&s were not parties, showing that part of the certificate purchased by S. from the administrator had been located, and that the balance of such certificate was procured from the land office, and was the one by virtue of which the land in dispute was acquired, was not admissible in evidence.

3. As the deed from the administrator to S. did not purport to convey the certificate by which the land in question was acquired, it and the mesne conveyances from S. to defendants did not constitute color of title.

4. A married woman is not liable on her <»venants of warranty in a deed unless the conveyance is for the benefit of her separate prop«rty, or for necessaries for herself and children.

Error from district court, Coleman county; J. W. Timmins, Judge.

Action of trespass to try title by Milton G. Patlllo and others against Mrs. R. H. Baird and R. H. Baird, her husband, to which John W. Parker and S. J. Parker, his wife, were made parties defendant before trial. There was a judgment entered on the verdict of a Jury in favor of plaintiffs, and defendants Baird bring error. Reformed and affirmed.

W. O. Read and J. P. Ledbetter, for plaintiffs In error. James B. Goff and Sims & Snodgrass, for defendants in error.

KEY, J. Plaintiffs In the court below, Milton G. Patlllo et al., as the heirs of John S. Patillo, deceased, on the 8th day of July, 1890, brought this suit In the ordinary form

of trespass to try title against the defendants Mrs. R. H. Baird and her husband, R. H. Baird, for the J. S. Patillo survey of 128 acres of land, situated In Coleman county. Said defendants answered by general denial and plea of not guilty, pleaded improvements In good faith, peaceable and adverse possession of the land in controversy, claiming and holding the same under title and color of title for more than three years next preceding the filing of this suit; also five years' peaceable and adverse possession, using and cultivating the same and paying all taxes thereon, claiming the same, under deeds duly registered, for a period of more than five years next preceding the filing of this suit They further alleged that they had purchased the land In controversy from John W. Parker and his wife, S. J. Parker, and had paid them therefor the sum of $512, and that, in consideration of the payment of said sum of money, said Parker and his wife had, by their deed dated February 14, 1885, conveyed them said land with general covenants of warranty of title. They prayed that said Parker and wife be made parties defendant, and that they be required to defend said title upon their warranty, and that. In the event plaintiffs recovered the land, defendants Baird and wife have judgment against Parker and wife for the purchase money paid them for the land, with Interest thereon from the date of said deed. John W. Parker and S. J. Parker appeared, and answered by general denial, and adopted the answer of Baird and wife. They also pleaded other matters not necessary to be noticed here. The cause was tried by a Jury, and resulted In a verdict in substance as follows, to wit: (1) For plaintiffs for the land in controversy; (2) for defendants Baird and wife for the value of the improvements put thereon, $985; (3) for the plaintiffs for the value of the use of said land from February 14, 1885, to October 11, 1890, $30.17; (4) that the value of the land, exclusive of improvements, is $1,024; (5) for the defendants Mrs. R. H. Baird and husband against the defendant John W. Parker for $512, with 8 per cent Interest thereon from February 14, 1885, to October 11, 1890. Judgment was rendered in accordance with this verdict and iJi" statute in such cases provided. A motion for a new trial was made by defendants, and overruled by the court Defendants Mrs. R. H. Baird and her husband, R. 11. Baird, have sued out a writ of error In eald cause, and brought it before this court as plaintiffs In error. The $36.17 assessed by the jury as the rental value of the land has been remitted In this court by the defendants in error.

The plaintiffs In the court below Introduced •In evidence a certified copy of a title from the state of Texas to the heirs of John S. Patillo, deceased,—patent No. 493, vol. 44, located by virtue of U. B. certificate No. IS/77, Issued by the general land office September 17, 1872, date of patent October 3, 1878, granting the land In controversy. Tho testimony shows that said plaintiffs were th« heirs at law of J. S. Patillo, deceased. The verdict of the Jury upon all of the Issues submitted to them, as shown by the charge of the court and the judgment rendered. Is supported by the testimony. The defendants In the court below claimed title to the land through a sale alleged to hare been made by Edwin Carter, as administrator of the estate of J. 8. Patillo, deceased, to Harriett S. Smith. Certified copies from the probate records of Harrison county were Introduced In evidence, showing that Edwin Carter was appointed administrator of said Patillo's estate January 2, 1850; that appraisers were appointed May 28, 1851; that at the June term, 1851. the administrator died a petition, stating that no property had come to his possession or knowledge belonging to said estate, except an unconditional certificate for 320 acres of land, and, as the costs of administration would have to be paid. It would be necessary to sell such certificate to raise funds for that purpose, and he prayed the court to grant an order to sell the same, which order was granted, as prayed for, at the same term of court. At the August term. 1851, of said probate court, Carter, the administrator, made a return, which was confirmed by said court, showing that he had sold "the unconditional headright certificate granted to the heirs of said decedent, John S. Patillo. by the county court of Rusk county at the May term thereof, A. D. 1851, third class, and numbered four hundred and thirty-two, for three hundred and twenty acres of land," to Bartlett S. Smith. The transcript from said probate court also shows that said administration was closed at the April term, 1852. It was shown that John 8. Patillo died October 5, 1839, In Jefferson county, Tex., where he resided. The defendants offered in evidence a deed from Edwin Garter, as administrator of Patillo's estate, to Bartlett S. Smith, and mesne conveyances from said Smith down to themselves. The court below held that these deeds were not admissible on the question of title, but allowed the defendants to Introduce them in evidence on the issue of good faith under their plea of improvements In good faith. These deeds were objected to by the plaintiffs as being Immaterial, and because the administration on Patillo's estate was void. The deed from Edwin Carter to Bartlett S. Smith describes the property conveyed as "the unconditional headright certificate granted to the heirs of said decedent [John S. Patillo] by the county court of Rusk county, at the May term thereof, for three hundred and twenty acres of land, third class, and numbered four hundred and thirty-two." The land sued for, and to which the plaintiffs prlma fade established their title, Is shown to have been patented by virtue of an unlocated balance certificate, No. 18/77, Issued

by the commissioner of the general land office September 17,1872. It appears, therefore, that the land in suit was acquired under another and different certificate from the one sold by the administrator of J. S. Patillo's estate to Bartlett S. Smith. There was no legitimate proof that the one by which this land was acquired was issued for an unlocated balance of the certificate sold by Patillo's administrator to said Smith.

One of the excluded deeds—the one from James McCathern to the estate of James Penny—contains recitals showing that 192 acres of the certificate purchased by Bartlett S. Smith from the administrator of J. S. Patillo's estate had been located, and that an unlocated balance of said certificate was procured from the land office, being the same by virtue of which the land in controversy was acquired. If the facts so recited were established by competent evidence, the identity of the two certificates would sufficiently appear. But, as the plaintiffs are In no wise connected with the deed containing these recitals, and are not claiming under, but In antagonism to, said deed, and all other deeds offered by the defendants, we know of no rule of evidence that will permit said recitals to be regarded as testimony against the plaintiffs. Therefore, as the deed from Patillo's administrator to Smith does not convey the land in controversy, nor the certificate by which it was acquired, the action of the court In excluding all the deeds offered on the question of title was not reversible error. On that question they were Immaterial. The defendants offered no testimony outside of the recitals in the deed referred to tending to prove the facts therein recited.

The ruling of the court below being correct, for the reason already given it becomes unnecessary for this court to determine whether or not the administration on the estate of J. S. Patillo was void. Nor were the excluded deeds admissible under the plea of the three-years statute of limitations, as contended by the plaintiffs in error. As the one from Patillo's administrator to Smith does not purport to convey the certificate by virtue of which the land In question was acquired, said deeds do not constitute color of title. The plaintiffs in error, Balrd and wife, complain of the action of the court in not rendering Judgment against Mrs. S. J. Parker on her warranty, she and her husband, J. W. Parker, having conveyed the land in controversy to plaintiff In error R. H. Baird by warranty deed. Except for the benefit of her separate property, or for necessaries for herself and children, a married woman cannot contract a pecuniary liability. Wallace T. Finberg, 46 Tex. 37. The Judgment of the court below will be so reformed as that the amount awarded to the plaintiffs in error, R. H. Balrd and wife, who were defendants in the court below, for Improvements, shall be $985. Instead of $948.83, as shown by the Judgment appealed from. As thus reformed. the Judgment will be affirmed. The costs of the writ of error to be paid by the defendants In error. Reformed and affirmed.

WESTERN UNION TEL. OO. v. McLEOD.1 (Court of Civil Appeals of Texas. Jan. 17,

1894.) Codbt Of Civil Appeals—Special Jddgks—Tkl

Eghaph Companies.

1. Under Const, art. 5, § 11, providing that when the court of civil appeals, or any membpr thereof, shall be disqualified, this shall be certified to the governor, who shall commission the requisite number of persons learned in the law to try said cause, the fact that the majority of the court concurring can dispose of a case does not invalidate a decision by a bench including a special judge so commissioned.

2. A condition that the telegraph company is made the agent of the sender, without liability, to forward the message over the lines of any other company when necessary to reach its destination, does not authorize the company to forward the message by telephone, where there is a telegraph line to the point of destination; and, if the telephone company is negligent in delivery, the receiving company is liable.

On rehearing. Affirmed. 22 S. W. 988, reversed.

STOREY, Special Judge. Finding of facts and conclusions of law. As matter of fact we find: That at 5 o'clock P. M., September 25, A. D. 1889, Walter Acker applied at the office of the Western Union Telegraph Company at Lampasas to send a message by telegraph to W. J. McLeod at Waxahachie. The message was written on appellant's blanks, below the printed contract. This contract, among other things, provided that "this company is hereby made the agent of the sender, without liability, to forward any message over the line of any other company when necessary to reach Its destination." The message was as follows: "Lampasas, Texas. Sept. 25th, 1889. To W. J. McLeod, Waxahachie, Texas: Miss Carrie sick. She wants you. Come to-morrow. [Signed] Walter Acker." This message was forwarded over the Erie Telephone & Telegraph Company's line by telegraph to Austin, and thence transmitted over the line of appellant, a telegraph line, to Dallas. Appellant had no line from Dallas to Waxahachie, and appellant delivered the message to the Erie Telephone & Telegraph Company, to be transmitted and delivered at Waxahachie. This company had only a telephone line between these points, and closed Its office, according to its rules, at 6 o'clock Saturday evening, and did not again open until Monday morning at 8 o'clock. Did no business on Sunday. The message was received at Dallas Sunday evening by appellant, and at 8 o'clock Monday morning, the 26th, delivered to the Erie Telephone Company, to be transmitted, and delivered at Waxahachie. It was delivered to MeLeod on the 28th. Miss Carrie was a sister to W. J. McLeod,

1 Rehearing pending.

and had no other relatives In the country. McLeod was working on a building within 100 yards of the telephone office in Waxahachie on the 26th, 27th, and 28th. This message was not delivered until the 28th. Miss Carrie died at 9 o'clock P. M. on the 28th of September. Had the message been delivered Monday, the 26th, her brother could have reached her bedside before her death. Had It been delivered on the 27th, he could have reached Lampasas before her burial, which took place at 5 o'clock P. M. on the 29th. As soon as he received the message, appellee went on first train, and arrived at Lampasas a few hours after her buriaL This message was received by the telephone company at Waxahachie Monday morning, the 26th, and some effort was made by a small office boy to find appellee. It was finally delivered to him at 11 o'clock A. M. on the 28th, and soon thereafter another message was delivered to him, announcing the death of Miss Carrie. He Immediately wired Walter Acker to delay the burial of his sister until he could get there. Acker replied that . It was impossible to delay, but appellee did not receive that message before he left Waxahachie for Lampasas. There was between Dallas and Waxahachie another telegraph line over which this message could1 have been sent upon its reception at Dallas. The verdict of the Jury upon all the Issues submitted to them, Including the question of negligence, and the amount of the damages assessed, Is supported by the evidence. As matter of law we conclude:

1. That appellant was not authorized to deliver the message to the telephone company for transmission to Waxahachie.

2. That It thereby made the telephone company Its agent for the speedy transmission and delivery of the message.

3. That the telephone company was negligent, and for this negligence the appellant Is liable.

At a former day of this term of the court, we reversed the Judgment of the court below, and remanded this cause on account of a supposed error of the court In refusing tocharge the Jury on a theory of the case contended for by appellant In appellee's motion for rehearing he presents two questions for our consideration: (1) That this court, as constituted to hear and determine this appeal, had no Jurisdiction, for the reason that "the special judge who presided with Judges KEY and COLLARD In the consideration and determination of this case, and who wrote the opinion, had no legal right, power, or authority to qualify or act as special Judge of this honorable court, and that the Judgment Is void and of no effect." (2) That we erred In reversing the Judgment of the district court, and In holding tfcat the court erred in refusing to give to the Jury the special charges asked by appellant, and in not affirming the judgment

Upon the first point we are aware that our supreme court has held In the case of City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960, that a majority of the court can legally dispose of the business of this court without the appointment of a special judge. This opinion of our supreme court was rendered after the special judge in this case was commissioned by the governor to sit In this case, and does not determine the question in this case. There the special judge had been appointed. Here the question Is, the governor having commissioned a special judge to sit in this case with Associate Justices KEY and COLLARD,—the chief justice having certified his disqualification to the governor, as required by law,—is the court thus constituted a legal court, or are its Judgments null and void, as contended by counsel for appellee? Section 11, art. 5, of the •constitution provides "that when the court of •civil appeals or any member thereof shall be disqualified to hear and determine any case, the same shall be certified to the governor, who shall Immediately commission the requl'site number of persons learned in the law for the trial of such cause." While it is held in the Nalle Case that a judgment rendered by two of the Judges, the other being disqualified, and not sitting in the case, was legal, ;i in! that the failure to appoint a special Judge to sit in that case did not render the judgment void, yet we do not construe the opinion in that case as holding that the judgment would have been void bad there been -a special judge commissioned to sit in the case. There can be no question but what it would be proper to appoint a special judge in cases where one judge was disqualified .and the other two disagreed, and it would no doubt be proper to appoint two special judges to sit in a case where two out of the three of the judges were disqualified. It Is the unanimous opinion of this court that, as the chief Justice was disqualified to sit in this case, and so certified the fact to the governor, who, under this provision of the constitution commissioned the special Judge to sit in this case, and he having qualified and acted as such, the Judgment of the court so constituted is a legal, valid, and binding judgment.

As to the other question presented by the motion, we have carefully reviewed the case, and our opinion heretofore rendered thereon, and are satisfied with it on all points considered except the single one upon which we reversed the case; that Is, the failure of the court to give in charge the appellant's theory •of the case as disclosed by the special charge .asked by appellant and refused by the court. By reference to appellant's eighth assignment of error, and the proposition and statement thereunder, the question is presented very well. I^is as follows, viz.:

Eighth error assigned: "The court was in •error In refusing to give the first special instruction asked by defendant, as follows:

'One of the conditions named In the message in controversy is that it is'agreed between the sender of the following message and this company, the defendant, that this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach Its destination. This is a reasonable regulation and contract, and binding upon those dealing with defendant; and a party, by writing a message on one of defendant's blank messages containing such a stipulation, Is held as accepting the proposition, and the same is binding upon him, although he may not have known, at the time of sending such message, that it would have to pass over another line or lines to reach its destination. If, therefore, yon believe from the evidence that defendant's telegraph line did not reach the point named in said message as its destination, and that, in order to forward said message to the point named therein, defendant would have to forward the same over some other line; and if you further believe that defendant did expeditiously, and within a reasonable time, transmit said message, after its reception, to the point or place on its line where it usually or commonly transfers its messages to a forwarding line, to be forwarded by It to the place of destination named in this message, and that at such connecting point it expeditiously, and within a reasonable time after Its reception, delivered said message to a connecting line, to wit, the Erie Telegraph & Telephone Co., to be by said last-named company forwarded over its line to the point of its destination, and there to be delivered to plaintiff, you will find for defendant; for the defendant will not be liable for such negligence, if such there was, in the forwardIng from such connecting point, and delivery of said message.' Said instruction wa» pertinent to the facts proven, and was asked and refused."

First proposition, eighth error: "Such contract was reasonable, valid, and binding upon plaintiff, and the refusal to so charge when requested was error."

Statement: "The messnge was written by the sender upon a blank message form of defendant company, containing said provision against liability. Defendant company had no line to Waxahachie, and was compelled to forward over another line, and did promptly deliver said message to the Erie Company."

It will be seen by reference to this assignment, proposition, and statement that the appellant claims that in delivering the message to the Erie Telephone Company at Dallas, to be transmitted over that line to Waxahachie, it was acting as the agent of appellee under the contract between them, and was not liable for the delay or negligence of the Erie Company. The message was written upon the blank of the Western Union Telegraph Company, which has this clause In the printed contract therein, viz.: "And this company Is hereby made the agent of the sender, without liability, to forward any message over the line of any other company when necessary to reach Its destination." The Western Union had no line from Dallas to Waxahaehle, and therefore sought to perform its contract by delivering the message to the Erie Telephone & Telegraph Company to be transmitted to Waxahachie. This company had no telegraph line between those points, but only a telephone line, wljlch, under its rules, closed its office at 6 o'clock Saturday evening until 8 o'clock Monday morning, and transmitted no messages on Sunday. There was another regular telegraph line, however, between those points to which appellant could have delivered the message. We do not believe there Is any ambiguity In the contract Appellant is, what Its name indicates, a telegraph cc*iipany. This contract required it to forward this message over Its own and other lines when necessary to reach Its destination, for which It had been paid, and appellant Is by the contract made the agent of the sender to forward the message over the line of any other company. It was certainly not intended by the contracting parties that appellant might discharge its obligation by delivering this message to a stage line and express line, a telephone line, or any other but a telegraph line. This being our construction of the contract, It follows that appellant Is liable for any negligence on the part of the Erie Telegraph & Telephone Company hi transmitting and delivering the message, as that company had no telegraph line, but only a telephone line, between Dallas and Waxahachie. If it cau be said that there Is any ambiguity In the contract, It is an undisputed fact that when Acker applied to the office of appellant at Lampasas to send this message, he Informed the operator that he wanted to have the message "transmitted by telegraph, and delivered to appellee at Waxahachie." But, aside from this, we construe the contract as not Authorizing appellant to deliver the message to a telephone company for transmission to Waxahachie, and in doing so It was not acting as the agent of appellee, but selecting an agent for Itself, and for whose negligence It is responsible. The motion for rehearing Is granted, and the judgment of the court below Is affirmed.

FISHER, G. J., did not sit hi this case.

MADDOX et nx. v. HARRIS et al.

(Court of Civil Appeals of Texas. Jan. 24, 1894.)


In trespass, the court sustained part of the exceptions to various items of damage alleged. Plaintiff refused to amend, and the—52

court dismissed the action, because, after such exceptions were sustained, the amount claimed was then less than $500, and not within the jurisdiction of the court; but the items not stricken out exceeded $500. Held, that the judgment will not be affirmed, because the court should hare sustained another exception, which would have reduced the claim to lees than $500; since, if such exception had been sustained, plaintiff might have availed himself of his right to amend.

Appeal from district court, Tom Green county; J. W. Timmins, Judge.

Action by G. T. Maddox and wife against L. B. Harris and others to recover damages for a wrongful and malicious trespass. From a judgment dismissing their cause of action, plaintiffs appeal. Reversed.

W. S. Billups, for appellants.

KEY, J. Appellant G. T. Maddox brought this suit against appellees, and, among other things, in his petition alleged, In substance, that defendants unlawfully, maliciously, wantonly, and vexatiously entered upon plaintiff's premises and home, where he and his family were residing, and by force and arms, with threats, and fraudulent representation that one of their number was a state officer, ordered plaintiff and his family to Immediately leave said premises; that, by reason thereof, plaintiff, bis family, and especially his wife, were alarmed and abused, and plaintiff's wife was hurt, made sick and lame, and so continued for the space of three months, and had not fully recovered at the time said petition was filed; that she suffered great pain, and was prevented from transacting her ordinary business; that the plaintiff had expended $50 in endeavoring to have her cured of the injuries and sickness so Inflicted; that he had lost the services of bis wife, worth $300, and had lost opportunities to make money in the sum of $250; and that, by reason of said wrongs, he was otherwise greatly damaged in the sum of $10,000. He also alleged that at the same time and place said defendants unlawfully, vexatiously, and maliciously, and against his protest, gathered and drove off 12 head of cattle belonging to him from his premises, to his damage $5,000. He prayed for judgment for $600 actual damages, and for such other actual damages as he might be entitled to, and for $15,000 exemplary damages, and for general and special relief. The defendants interposed a general demurrer to plaintiff's petition. They also specially excepted: "(1) Because each of the Items of damages claimed by the plaintiff 'Is too remote,' and not the natural and proximate result of the Injury complained of. (2) That part of said petition that complains of $300 damage for loss of services of the plaintiff's wife, and $10,000 damages otherwise accruing, does not show for what time such damages are claimed, nor Is there any allegation for what services of the plaintiff's wife he is seeking damages, nor is It shown

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