districts, and absolute prohibitory law covering all the territory, with no authority to sell as found in this act. failed to show as a fact that this, as a po- | plicant could not show facts that would bring lice measure, has deprived him of any right, him within the regulatory acts found in the and this statement is supported by citing au- city charters, and discussed by the courts in thorities dealing with the question of re- the many opinions cited by Judge MORROW stricted saloon districts in municipal corpora- because not authorized by the terms of the act. tions. Quite a number of these cases have A broad distinction is to be observed bebeen decided by this court and civil courts tween the regulatory acts discussed in the of Texas, to the effect that municipal corpo- opinions cited by Judge MORROW with refrations may be endowed with power by leg-erence to city charters and restricted saloon islative act to create what is called "restrictive saloon districts" within the domain or territory covered by the respective charters. The writer does not believe these cases are in point. In all such charters, and they practically cover the cities of Texas, it will be noted that power was granted to pass ordinances restricting the sale of intoxicants within the corporate limits of the municipal boundaries to certain districts or portions of the territory of said municipality. That was but a regulation specified in the law itself, and went with and was a part of the charter. This was justified by article 11, § 5, of the state Constitution. But in all of those laws and in all of those cases the proposition is asserted and supported that: First, there was a legal right to sell in the territory; second, the municipality was clothed with authority to select the limits in which it should be sold for better regulation and control. This bill has none of the features of regulation as specified in those cases. The law in this instance is a drastic prohibitory enactment. It nowhere authorIt nowhere authorizes the sale within the territory in or outside of a restricted district, but it bars all saloons and excludes every character of dealing with intoxicants inside of the territory mentioned, the ten-mile zone. This is totally unlike the matter discussed with reference to municipality of city charters and their authority to regulate. I cannot, therefore, agree that this is a regulatory act, or that it was incumbent upon the applicant to show that as a matter of fact the zone law was such restricted district. The statute makes it absolutely prohibitory, and leaves no territory where the sale could be made. The ap I have not had time since the opinion was written to go at length into these matters, and therefore merely state what I have stated hurriedly and not concisely, but rather crudely, in support of the two propositions announced in the beginning of the dissenting opinion. I, therefore, conclude that this was intended to operate as a military law or statute, pertaining and confined to the war as a measure and the surrounding forts, training camps, aviation schools, and shipyards, and it was enacted for no other purpose except as a drastic and stringent prohibitory law with reference to intoxicants in that connection. I also agree with Judge MORROW, as I understand his opinion, that had this been a local option law, there could not have been any restricted saloon districts within the territory mentioned. That would be a correct conclusion, yet this act is more drastic than the local option law, and consequently decidedly more prohibitory in its provisions. law would exclude the zone law. Of this The same territory covered by the local option there seems to be no diversity of opinion; at least there ought not to be. I also conclude that the measure is a drastic prohibitory law, and enacted under the guise of a war measure to prevent the sale, exchange, and shipment into the territory of intoxicants, and that it is a clear invasion of our constitutional provision with reference to local option laws, and intended to operate outside of and superior to that constitutional section. I, therefore, respectfully submit that the applicant ought to have been discharged from custody. SUMMIT PLACE CO. v. TERRELL. (Court of Civil Appeals of Texas. San Antonio. 1. APPEAL AND ERROR 907(5)-REVIEWFINDING OF FACT. The Court of Civil Appeals cannot reverse the trial court's finding of fact as to the extent of a lot, where such question can be determined only by a map, which the trial court examined, and which is not presented in the record. 2. EXCHANGE OF PROPERTY 8(5)-MISREPRESENTATION AS TO SIZE OF LOT-DAMAGES. Where, in an exchange of property, plaintiff paid $60 a foot for 16 feet of frontage that were not in the lot he received, a mistake caused by his reliance upon the statement of an offieer of the company with which he dealt, the measure of plaintiff's damage is the difference between the value of what he parted with and the value of what he received. 3. EXCHANGE OF PROPERTY 8 (4) - FALSE REPRESENTATION-EVIDENce. Evidence held to sustain finding that plaintiff, who exchanged property with defendant company, was induced, by the false representations of the company's officer, on which he relied, to pay $60 a foot for 16 feet of frontage that did not exist in the lot he received. Error from District Court, Bexar County; W. F. Ezell, Judge. Suit by M. W. Terrell against the Summit Place Company. To review judgment for plaintiff, defendant brings error. Affirmed. McAskill, simmang & Mauermann and Leonard Brown, all of San Antonio, for plaintiff in error. John Turner and Barrett & Barrett, all of San Antonio, for defendant in error. SWEARINGEN, J. M. W. Terrell, the defendant in error, brought suit against the Summit Place Company, plaintiff in error, to recover $960, with 6 per cent. interest, alleged to have been the excess paid for a lot 114 feet wide, which Mr. Terrell afterwards discovered was only 98 feet wide. The price paid was $60 a front foot. The shortage was 16 feet. The cause was submitted to the court without a jury. Judgment was rendered in favor of defendant in error, M. W. Terrell, for the amount sued for. Defendant in error alleged in his second amended petition that he purchased lot 7 from the Summit Place Company and paid therefor the sum of $60 a front foot; that the president of the company, Mr. Ed. Roos, knew the number of front feet in the lot was 98, but told defendant in error the number was 114; that defendant did not know the number of front feet in the lot, and relied upon the statement of Mr. Roos. Subse quently the mistake was discovered by defendant in error, and he demanded the sum, $960, with interest, from plaintiff in error, which demand was refused. Plaintiff in error answered by general and special exceptions and general denial. There is evidence to support the findings of fact made by the trial court, or at least no evidence in the statement of facts to contradict the court's findings; therefore we adopt as our findings of fact the following: "(1) That on or about August 11, 1913, the Summit Place Company, a corporation by and under the laws of Texas, made an exchange of property with M. W. Terrell, and as part consideration for his property agreed to convey him lot 6 in block 7, on the southwest corner of the intersection of Howard street and Queensborough court, in San Antonio, Bexar county, Tex. (2) That said lot 6 was put in said trade at an agreed valuation of $60 per front foot, and that the Summit Place Company, through its president, Ed. Roos, represented to M. W. Terrell that said lot had a frontage on Queensborough court of 114 feet. "(3) That on or about August 11, 1913, the Summit Place Company executed a deed to M. W. Terrell to said lot 6, and that he settled with them therefor, at the agreed valuation of $60 per front foot, for 114 feet. "(4) That said lot actually has a frontage on said street of only 98 feet, and that said fact was known to the said Ed. Roos, president of said Summit Place Company, at the time he made said representations. "(5) That at the time of the settlement the said M. W. Terrell did not know that said lot only had a frontage of 98 feet, or that it was claimed that the sidewalk and parking was a part of said lot, but believed that it had a frontage of 114 feet as represented. "(6) That said M. W. Terrell was secretary that he was only a nominal stockholder, and had of said Summit Place Company in 1908, but nothing to do with the laying out and platting erty, except, as secretary of said company, to of said addition, or with the sale of the propattest the corporate seal and acknowledge the dedication thereof, and sign a few deeds." lot is a sidewalk 4 feet wide, and adjoining the "(8) That directly east of and adjoining said sidewalk on the east is a parking 12 feet wide, and that a map showing this has been duly recorded in the deed and plat records of Bexar county, Tex., and that a correct copy of that part of said plat, showing said lot 6 and adjoining sidewalk, parking, and street, together with a copy of the instrument dedicáting said property, as shown by said map of record, are hereto attached, marked Exhibits A and B, and made a part hereof. "(9) That said sidewalk and parking form no part of said lot 6. "(10) That plaintiff has been damaged by said false representations in the sum of $960, the agreed valuation per front foot for the 16 feet shortage in the width of said lot, with interest thereon from August 11, 1913, at 6 per cent.' By the first and second assignments it is insisted that lot 6 was 114 feet wide, and not 98 feet wide. By the fourth paragraph of its findings of fact the trial court found that lot 6 was only 98 feet wide. The width of the lot is not expressed in the description of the deed given in the record, but the width of the lot must appear upon a plat or map to which reference is made for certainty of description by the deed from Summit Place Company to M. W. Terrell. The court refers to this map as attached to the findings of fact marked Exhibit A. No map of any kind is found in the transcript or in statement of facts. In the briefs for both parties frequent reference is made to a map. From the record before us we are forced to con- | 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) clude that there was a map before the trial 804, 123 Am. St. Rep. 772, as follows: court, and that from the map the trial court found that lot 6 had only 98 feet front, as testified to by Mr. Terrell. Nelson v. Lamm, 147 S. W. 667, § 2. [1] The contention of the Summit Place Company seems to be that the deed and map together show that the lot is 114 feet wide, because the map shows that the lot takes in the sidewalk and parkway. Whether the lot extends to the sidewalk only, or extends beyond the sidewalk and the parkway to the street, is a question of fact, and could, it occurs to us, be determined only by the map. The trial court examined the map, and determined that the lot was only 98 feet wide. No map has been presented in the record to us; hence we are unable to reverse this finding of fact of the trial court. The first and second assignments are overruled. The third assignment is that the court erred in holding that there was evidence that plaintiff in error, fraudulently represented to defendant in error that there was 114 feet across the front of lot 6, exclusive of the public sidewalk and private parking. The court found that there were only 98 feet across the front of lot 6, but that Mr. Roos, president of the plaintiff in error company, told Mr. Terrell the front of the lot was 114 feet, and further found that the price agreed upon and paid was $60 for each and every foot of frontage. The total amount paid by M. W. Terrell included, by mistake on the part of Mr. Terrell, $60 a foot for 16 feet that were not in the lot. This mistake by Mr. Terrell was caused by his reliance upon the statement by Mr. Roos that the lot contained 114 feet. At the time it was well known to Mr. Roos that the lot only contained 98 feet. [2] The measure of Mr. Terrell's damage is, as expressed in the case of George v. Hesse, "Clearly we think the extent of his loss is the difference between the value of that which he has parted with and the value of that which he has received under the agreement." Under the judgment of the court, sustained by the evidence, Mr. Terrell parted with $60 a foot for 114 feet, or $6,840, whereas the value of that received, according to the judgment of the trial court, was $5,880. The difference is, of course, $960, the amount for which the judgment was rendered. [3] The deed could have conveyed title in fee to the land, even though burdened with an easement in the public; and the agreement could have been that Mr. Terrell purchased the specific lot for an aggregate price. But the trial court has found that the agreement was to buy a certain number of feet front at an agreed price per foot, and the trial court has further found, as a fact, that there were only 98 feet purchased, and that the price paid for the 16 feet that did not exist was procured to be paid by the false representation of Mr. Roos, upon which Mr. Terrell relied. Under the law announced in the GeorgeHesse Case, supra, and the facts found by the court and sustained by the evidence, we are of the opinion that the third assignment should be overruled. Brown v. Yoakum, 170 S. W. 803; O'Connell v. Duke, 29 Tex. 300, 94 Am. Dec. 282; Moore v. Hazelwood, 67 Tex. 624, 4 S. W. 215; Wheeler v. Boyd, 69 Tex. 293, 6 S. W. 614; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Lancaster v. Richardson, 13 Tex. Civ. App. 682, 35 S. W. 749; Wuest v. Moehrig, 24 Tex. Civ. App. 124, 57 S. W. 864; Barnes v. Lightfoot, 26 Tex. Civ. App. 113, 62 S. W. 564; Yates v. Buttrill, 132 S. W. 831; Id., 149 S. W. 347. The judgment is affirmed. This measure of damages is not correct, HOUSTON BELT & TERMINAL RY. CO. v. and, without further comment, the case must be reversed and remanded. KING. (No. 372.) In action for the value of a horse, which fell because of a spike extending several inches above a tie in defendant's railroad crossing, and broke its leg, and for veterinary services procured at defendant's request, the value of plaintiff's horse just prior to the accident and its value subsequent to the accident after a reasonable time had elapsed within which the injury might have developed was not the correct measure of damages. Appeal from Harris County Court; W. E. Monteith, Judge. Suit in justice court by L. G. King against the Houston Belt & Terminal Railway Company. There was a judgment for plaintiff in both the justice and county courts, and defendant appeals. Reversed and remanded. Andrews, Streetman, Burns & Logue, and M. E. Kurth, all of Houston, for appellant. Geo. F. Howard, Vinson & Elkins, and H. L. Nicholson, all of Houston, for appellee. BROOKE, J. This suit was filed by plaintiff to recover from the defendant, Houston Belt & Terminal Railway Company, the sum of $100 as the value of a horse alleged to have been owned by him and injured by defendant's negligence, and for the further sum of $49 as veterinary services, for which he alleged himself to be liable by reason of the injury to such horse. The suit was begun in the justice court, precinct No. 1, Harris county. The judgment was in favor of plaintiff against the defendant for $149. In the county court at law the case was submitted on a general charge, which resulted in judgment for plaintiff for $129. The allegation was that plaintiff was the owner of the horse in question, and while he was driving across the tracks of defend ant, in the city of Houston, the borse stepped on a spike extending several inches above the tie, and fell and broke its leg; that defendant's claim agent instructed him to send the horse to a veterinary, which he did. The ground of negligence alleged was that defendant did not keep its crossing in repair. Plaintiff further alleged that he was liable for $49 as doctor's bill and care of said animal on account of said injury; the horse having been sent to the veterinary at the request of defendant's agent. The first assignment of error is that the court erred in instructing the jury on the measure of damages, as follows: "You are instructed that the measure of damages in this case will be the value of the horse just prior to such accident and the value of the horse subsequent to the accident, after a reasonable time had elapsed within which his injury, if any, might have developed, showing the damages sustained." NIX et al. v. ALBERT PICK & CO. (Court of Civil Appeals of Texas. San Antonio. 1. MORTGAGES 284-ASSUMPTION OF DEBT BY PURCHASER. Purchaser who agreed to discharge mortgages on five lots, only four of which she purchased, under vendor's assurance that no interest was then due, and was compelled to pay interest then due, with 10 per cent. attorney's fees, could recover such amount from the vendor. PUR 2. VENDOR AND PURCHASER 259 CHASE-MONEY LIENS. Where vendor owned five lots, four of which were subject to trust deed, and he sold the fifth lot and three others on consideration that the vendee discharge the trust deeds on all of them, and the mortgagee without his consent released one lot and then sought foreclosure, the vendor was entitled as against the vendee to a lien on the two unincumbered lots, until the mortgage lien was discharged. 3. MORTGAGES 580-TRUST DEEDS-FORECLOSURE COSTS. Where vendor owned five lots, four of which were subject to trust deed, and he sold the fifth lot and three others on consideration that the vendee discharge the trust deeds on all of them, and she failed to do so, all costs should be awarded against her in the foreclosure suit. Appeal from District Court, Bexar County; J. T. Sluder, Judge. Suit by Albert Pick & Co. against D. H. and Mary E. Touzalin, J. M. Nix, and others. From the judgment rendered, Nix and others appeal. Affirmed in part, and reversed and rendered in part. Henry C. King, Jr., M. L. Roark, and Don A. Bliss, all of San Antonio, for appellants. W. M. Pardue, Lewright & Douglas, and C. A. Keller, all of San 'Antonio, for appellee. SWEARINGEN, J. Albert Pick & Co. brought this suit against D. H. and Mary E. Touzalin, J. M. Nix, the appellant, and others, to recover the amount of a note executed by J. M. Nix and assumed by Mary E. Touzalin, and to foreclose a deed of trust lien given by the said Nix to secure the payment of the note. Both Nix and Mrs. Touzalin admitted Co. The suit resolved itself into a contest bethe cause of action alleged by Albert Pick & tween Mary E. Touzalin and J. M. Nix; the former pleading that she was induced to purchase the property by the misrepresentation of Nix to the effect that there was no accrued interest on the notes assumed by Mrs. Touzalin up to October 13, 1913, the day of the purchase, whereas in fact there was accrued interest to the amount of $380 on each of the three notes. Mary Touzalin admitted that she learned that there was $380 accrued in the purchase, and the jury determined that issue in favor of Mary Touzalin against Nix. The first proposition submitted under the first, second, and third assignments is: "The cause of action pleaded by Mary E. Touzalin over against J. M. Nix being an action for damages against the said Nix alleged induced to purchase the properties by means of to have been suffered by her by reason of being false representations made to her by the said Nix, her measure of damages was the difference between the value of the properties at the time of the purchase and the price she paid." Mrs. Touzalin pleaded facts entitling her to one of three remedies, namely, to rescind, to recover damages caused by the purchase, and also to recover the excess incumbrance on the property. The latter was awarded her. accepted this promise and conveyed the property in consideration thereof. The indebtedness was $32,760. Mary Touzalin never promised to pay this excess of $760, but because it was secured by a lien on the property she was compelled to pay it. She should recover that amount from Nix if she actually paid it, or if it is paid out of the property she purchased. terest on the first of the three notes before I cerning the interest accrued at the date of she purchased, which interest was assumed by her in the purchase; but she alleged that she relied upon the statement of Nix to the effect that the other two notes, had no interest accrued up to the day of the purchase. She therefore sued for the sum of the two amounts of interest accrued on the day of the purchase, which aggregated $760, upon which sum she asked for 6 per cent. interest per annum from date of purchase and for 10 per cent. as attorney's fees. Nix denied the allegations of misrepresentation concerning the accrued interest, and alleged in substance that he sold to Mary E. Touzalin houses and parcels of land, identified as A, C, D, and F. Each parcel is described by metes and bounds in the plat made a part of the decree. Parcel A is on the N. E. corner of Augusta street and Baltimore avenue. Parcel C is on the [1] Mary Touzalin promised to pay an inS. E. corner of Baltimore avenue and a 10-debtedness of $32,000 for the property. Nix foot alley opening into Baltimore avenue, and is between and parallel with Augusta and Dallas streets. This parcel C is a rectangle facing 97 feet on Baltimore avenue and 79 feet on the said 10-foot alley. Parcel D is on the N. E. corner of the said alley and Baltimore avenue. Parcel F is on the S. E. corner of Baltimore avenue and Dallas street. This parcel (F) was conveyed to Mary Touzalin, but was not incumbered with the deed of trust lien. Parcel B faces south on Augusta street and its S. W corner is 58.51 feet from the N. E. corner of Baltimore avenue and Augusta street. This parcel B was not conveyed to Mrs. Touzalin, but was incumbered with the deed of trust for the benefit of Pick & Co. Nix further alleged that the sole consideration promised to be paid by Mary Touzalin for the property deeded to her was her promise to pay the indebtedness secured by the deed of trust executed by Nix for the benefit of Albert Pick & Co. and the promise to pay $2,000, secured by a mechanic's lien. This $2,000 was paid, and is eliminated from our further consideration. Nix alleged that he owns a vendor's lien on the properties conveyed by him to Mary Touzalin, viz. parcels A, C, D, and F, because the consideration promised to be paid for same has not been paid. Nix prayed that his vendor's lien be foreclosed on parcels D and F, in the event parcels A and C failed to sell for an amount sufficient to pay in full the Albert Pick & Co. indebtedness and costs. Special issues were submitted to a jury. Judgment was rendered in favor of Albert Pick & Co. as prayed for, and in favor of Mary E. Touzalin against J. M. Nix for the $760 interest accrued on the date of purchase, together with interest at 6 per cent. per annum from that date to the date of the judgment and also for attorney's fees of 10 per cent. of the amount of the $760 and interest. Judgment was rendered against Nix on his alleged vendor's lien. There is no dispute about the facts in this case, except as to the representations con The second proposition submitted under the first, second and third assignments is that it was error to adjudge attorney's fees of 10 per cent. on the $760 against Nix. The notes made by J. M. Nix. and assumed by Mrs. Touzalin required the payment of 10 per cent. of the amount as attorney's fees. Mary E. Touzalin never. assumed or promised to pay the $760. She did not owe it and did not owe the attorney's fees on it. As the $760, together with 10 per cent. attorney's fees, was adjudged to be a lien against the property purchased by Mrs. Touzalin, it was fair that she recover the attorney's fees together with the $760, none of which did she owe. The first, second, and third assignments are overruled. [2, 3] The fourth and fifth assignments contend that the court erred in refusing to enforce Nix's vendor's lien on parcels D and F, both of which were conveyed by Nix to Mrs. Touzalin in consideration of the promise to pay the indebtedness made the basis of this suit by Albert Pick & Co. The parcel F, which is on the corner of Baltimore avenue and Dallas street, and on which are two buildings, was never incumbered by the Pick deed of trust. The parcel D was released by Pick & Co. to Mary Touzalin from the deed of trust without the knowledge or consent of Nix. Mrs. Touzalin, therefore, held both parcels D and F free from the deed of trust lien. The decree in this case enforces the deed of trust lien against the parcels A and C, purchased by Mrs. Touzalin, and also against parcel B, fronting on Augusta street, and on which there was a building, No. 503, |