receiver appointed by a federal court would | they were on August 6, 1912, and prior there-

BROOKE, J. This was an action for debt brought by appellees, who were plaintiffs below, against appellant. The appellees appear to have been practicing physicians in the city of Houston. The case was tried before the court without a jury, and resulted in a judgment in favor of appellees in the sum of $500. Appellant filed his motion for new trial, which was overruled, and notice of appeal given, and the case is properly before this court for revision.

The contentions of appellant are, among other things, that the judgment of the court is contrary to and unauthorized by law, in that both the pleadings and the evidence failed to show that the plaintiffs, or either of them, had complied with the requirements of law, and especially with the provisions of article 5736, Vernon's Sayles' Civil Statutes, in that the pleadings failed to allege, and the evidence to show, that the plaintiffs, or either of them, had complied with the statute regulating the practice of medicine, and the evidence totally failed, to show such facts. This contention must be sustained.

to, duly licensed physicians, under the laws of the state of Texas. Under this allegation, it is much to be doubted if the pleadings, were then sufficient to show that they had complied with the statute regulating the practice of medicine. However, if it be presumed that such was the case, it still must be held that the finding of the court, wherein it is found that the plaintiffs herein, Eckhardt and Weir, are both licensed practicing physicians, and have been for several years, and on August 8, 1912, and continuously thereafter, to the date of the trial, was totally and absolutely shown by the statement of facts to be not founded upon any testimony that is shown by this record. Eckhardt testified that he was a practicing physician. Weir testified:

"I am a practicing physician and have been engaged in the practice in Houston for about ten years.'

That being the extent of the testimony, and nothing found in the record upon which the court could base its said finding, we are of opinion that the finding is not warranted. Article 5736, Sayles' Annotated Civil Statutes, provides:

"It shall be unlawful for any one to practice medicine in any of its branches upon human beings within the limits of this state, who has not registered in the district clerk's office in the county in which he resides his authority for so practicing as here prescribed, together with his age, post office address, place of birth, school of practice, to which he professes to belong, subscribed and verified by oath, which if willfully false, shall subject the applicant to conviction by law. The fact of such oath and record shall and punishment for false swearing, as provided be endorsed by the district clerk upon the certificate. The holder of the certificate must have the same recorded upon each change of resisaid record shall be prima facie evidence of the dence to another county, and the absence of want of such certificate."

In the case of Wilson v. Vick, 93 Tex. 88, 53 S. W. 576, it is held that a physician who has a diploma from a recognized medical school, duly recorded, is entitled to practice medicine without obtaining a certificate from the board of medical examiners. However, a contrary decision, in Kenedy v. Schultz, 6 Tex. Civ. App. 461, 25 S. W. 667, has been held to be correct, under the provisions of Revised Statutes of 1879, art. 3638, which prohibited practicing without obtaining a certificate from the medical board, but which said statute was omitted from the revision of 1895. See Wickes-Nease v. Watts, 30 Tex. Civ. App. 515, 70 S. W. 1001; Dowdell v. McBride, 18 Tex. Civ. App. 645, 45 S. W. 397. [1] In the first place, the pleadings in the The state of this record, therefore, showing plaintiffs' original petition, and the first and no testimony which would warrant the consecond amended original petitions, are fatally clusion of the court that appellees could redefective in this respect, and if the pleadings cover for professional services without comwere not totally deficient in the lower court, pliance with the statutes regulating the pracit was by reason of a trial amendment, by tice of medicine, even if the same had been which they alleged by trial amendment that properly pleaded, is fatal to this cause.

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Wooley v. Bell, 33 Tex. Civ. App. 399, 76 S. ued to so describe it. This fact was doubtW. 797.

[2] There is one other matter which is evidenced by this record, and that is that the pleadings and the evidence do not show any copartnership or other interest of appellees in the right to compensation of the other by which they could maintain or recover upon a joint cause of action. This also is fatal to the appellees in this case.

Such being the state of the record, it follows that this cause must be reversed and remanded.

WESTERN ASSUR, CO. OF TORONTO,
CANADA, v. BUSCH et al.
(No. 5906.)

(Court of Civil Appeals of Texas. Austin.
March 27, 1918. Rehearing Denied
May 1, 1918.)

1. INSURANCE 668 (4)-TRIAL-DIRECTION OF VERDICT.

It is error to direct a verdict for insured if there is evidence that the premises were vacant, sufficient to make a jury question.

2. TRIAL 139(1)-DIRECTION OF VERDICT.
If it could reasonably be supposed that the
minds of unprejudiced men of ordinary intelli-
gence might differ, as to weight of testimony or
the deductions therefrom, the question is for
the jury.

less overlooked by both the agent and the insured. The policy contemplated a change of use, provided such change did not render the risk more hazardous. There was no evidence that a building used for the storage of salt and iron pipes is a more hazardous risk than one used for the storage of ice and beer. The court instructed the jury to return a verdict for plaintiff. The defense was that the house was vacant at the time of the fire, and had been for more than ten days prior thereto.

Opinion.

[1] The controlling issue on this appeal is whether or not there was evidence as to vacancy of sufficient probative force to require the submission of that issue to the jury. If so, it was reversible error for the court to instruct a verdict. Lee v. Railway Co., 89 Tex. 588, 36 S. W. 63; Wallace v. Oil Co., 91 Tex. 21, 40 S. W. 399; Stevenson v. Pullman Co., 26 S. W. 112; Johnston v. Drought, 22 S. W. 290; Look v. Bailey, 164 S. W. 407.

[2] The test as to the conclusiveness of the evidence is, Could it reasonably be supposed that the minds of unprejudiced men of ordinary intelligence might differ about it, either as to the weight to be given to the testimony 3. INSURANCE 668 (4)-FIRE POLICY-VA- or to the deduction drawn therefrom? McCANCY-QUESTION FOR JURY. Cartney v. McCartney, 53 S. W. 390; RailEvidence, in action on fire policy, held in-way Co. v. Harris, 22 Tex. Civ. App. 16, 53 sufficient to raise jury question as to whether premises insured were vacant at the time of the

fire.

Error from McLennan County Court: Jas. P. Alexander, Judge.

Action by August A. Busch and others against the Western Assurance Company of Toronto, Canada. Judgment for plaintiffs, and defendant brings error. Affirmed.

Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for plaintiff in error. Stribling & Stribling, of Waco, for defendants in error.

Findings of Fact.

S. W. 600; Casualty Co. v. Nelson, 153 S.
W. 676; Railway Co. v. Frazer, 182 S. W.
1161; Lee v. Railway Co., supra. If so, it is
a question for the jury; if not, it is a ques-
Lumber Co. v.
tion of law for the court.
Railway Co., 164 S. W. 404; Wintz v. Morri-
son, 17 Tex. 372, 67 Am. Dec. 658; Tel. Co.
v. Burgess, 60 S. W. 1025.

[3] M. L. Elliott, who was working for the Mart Ice & Light Company at the time of the fire, and for four years prior thereto, testified:

"I should think there were three or four tons of salt in there at the time of the fire. *** We were using this house for the purpose of storing salt. I was in and out of there every few days. * * * I remember the day the building burned; up to that time we were continually putting salt in there, and I was going in and out of there and using it for the purpose of salt, and also for the purpose of storing our pipe fittings for safety, where it could be cared for. We were using this continually in connection with our business. We were us* * * I suppose ing it at the time it burned. of salt there for a couple of years." we had been using the building for the storage

JENKINS, J. On March 29, 1914, the plaintiff in error issued to the defendant in error a policy on a house in Mart, McLennan county, Tex., described in the policy as being used for the storage of ice and beer. Thereafter, before the expiration of the time for which the building was insured, it was totally destroyed by fire. The building had been so used prior to July, 1914, at which time local option was adopted in the precinct in which Mart is located, and at and for two years prior to the time of the fire it was used by the Mart Ice Company for the storage of salt and iron pipes. There were The only other testimony on this issue was three or four tons of salt in the build- that of H. W. Edwards, a citizen of Mart, ing at the time of the fire. The in- who was working at a gin near by, and who surance agent had issued policies on this passed the building on Saturday before it house when it was used for the storage of was burned on Sunday night. On direct exice and beer, and subsequent policies contin-amination he testified that, "It was vacant;

N. P. Gillespie, a citizen of Mart, also testified that the building had been used for the storage of salt.

it was empty." His cross-examination shows that he did not mean that it was vacant in a legal sense. He said:

"There was junk pipe there. The house was not empty. When I said a while ago that the house was empty, I did not mean there was nothing in it at all. I do not undertake to say there was nothing else in the house; there might have been something else in it; I did not investigate to see."

By "vacant" this witness evidently meant that he did not see anyone doing business in the house. He said:

* *

they must be held to have approved them and waived their objections.

Appeal from District Court,, McLennan County; E. J. Clark, Judge.

Trespass to try title by Moses Byrd against Nora Shumaker and others. Judgment for plaintiff, and defendants appeal. Affirmed. Tom M. Hamilton and H. C. Lindsey, both of Waco, for appellants. J. D. Willis, of Waco, for appellee.

"I meant I did not see anybody going in and KEY, C. J. This is an action of trespass out of the building working there. * While I was working there at the gin they to try title, which resulted in a verdict and might have been going in and out there doing judgment for the plaintiff, and the defendants business at that house. I do not undertake to have appealed. state that they were not."

We do not think that the evidence of this witness, when taken as a whole, as against the testimony of Elliott, furnishes even a scintilla of evidence that the building was vacant at the time of the fire, or had been since the issuance of a policy. There is nothing in the record to cast suspicion on the testimony of either of the witnesses. In Ins. Co. v. Cobb, 180 S. W. 156, the court says: "Under the weight of authority, 'vacant" means entire abandonment, deprived of contents, empty."

This language is to be construed in its ordinary significance. It does not mean, where the use to which a building had previously been put has been abandoned, that leaving a few worthless articles therein would prevent its becoming vacant. When, however, articles of substantial value are left or placed therein, the building cannot be said

to be vacant.

No error appearing of record, the judgment of the trial court is affirmed.

Affirmed.

SHUMAKER et al. v. BYRD. (No. 5890.)
(Court of Civil Appeals of Texas. Austin.
March 7, 1918. Rehearing Denied
April 3, 1918.)

1. APPEAL AND ERROR
-WAIVER.

499(2)—DEMURRER

Where the record on appeal does not show that a demurrer and exception to plaintiff's petition were called to the attention or ruled on by the trial court, they will be regarded as waived.

2. TRESPASS TO TRY TITLE -SUFFICIENCY.

32-COMPLAINT

A complaint in trespass to try title alleging that plaintiff was in possession of the land sued for, describing it, that defendant on a stated date unlawfully entered upon the premises and ejected the plaintiff therefrom, and unlawfully withholds possession thereof to plaintiff's damage, that the property is being kept by defendant in a manner reasonably calculated to injure it and destroy its market value, and that plaintiff fears that defendant will make use of such possession to injure the property, was sufficient as against a general demurrer. 3. TRIAL 273-RESERVATION OF EXCEPTIONS-WAIVER.

Where appellants have failed to object to instructions before they were read to the jury,

The first assignment complains of the alleged action of the trial court in refusing to postpone the trial, but the transcript contains no bill of exception relating to the matter referred to, and the statement of facts, which is referred to in support of the assignment, does not sustain the same. In fact, it shows that the case was set for trial at a particular time; that appellants' attorney at that time was otherwise engaged at another court; that he appeared in the court below just as the jury came in with the verdict, and before it was read asked for time to produce his evidence; but the testimony there referred to shows that the court offered to give the attorney ten minutes to get his witness, who, he said, lived in Waco, where the case was being tried, but the attorney replied, "Just let it stand like it is;" and the court then stated, "I will set the verdict aside," to which the attorney replied, "No, sir; just let it stand as it is." Instead of that showing that an exception was reserved to the action of the court in refusing to allow appellants time to procure their testimony, it shows that the court offered to set the verdict aside in order to allow such time, but that appellants' counsel objected to that course being pursued.

[1] The second and third assignments complain of the alleged action of the trial court in failing to sustain the defendants' general demurrer and exception to the plaintiff's petition, but the record does not show that the demurrer and exception referred to were called to the attention of or ruled upon by the trial court, and therefore they must be regarded as waived.

[2] Under those assignments it is contended that the case discloses fundamental error, because the petition alleges that the plaintiff was in possession of the premises after he was alleged to have been evicted therefrom. The petition alleges that on or about the 23d day of December, A. D. 1915, the plaintiff was lawfully seized and possessed of the land and premises sued for, and then follows a description of the land, which includes reference to two deeds, one dated December 17, 1915, and the other dated December 18, 1915. The petition then alleges that:

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Appeal from Bell County Court; M. B. Richard Critz, Judge. Blair, Judge.

Action by T. H. Collins against J. B. Conlisk. Judgment for plaintiff, and defendant appeals. Affirmed.

A. D. Dyess, of Houston, for appellant. J. B. Talley, of Temple, for appellee.

appealed, testified that after the lease contract was entered into, and prior to the time for which the plaintiff sought to recover, the partnership referred to had been dissolved, and that after such dissolution neither of the appellants was interested in the business, which seems to have been continued by the other partner. The plaintiff testified that he had no knowledge or notice of the alleged dissolution of the partnership, and the court instructed the jury as follows:

"You are further instructed that after a partnership has been dissolved the members thereof cannot create obligations which will bind the firm, or change the character or form of contracts already existing, but it devolves upon them to give actual notice to those with whom such firm has been dealing; and any act done within the scope of the partnership by any one member of the firm, after its dissolution, and before actual notice of such dissolution, to those with whom the firm has been dealing, is binding upon all members of the partnership."

tual notice embraces not only direct knowledge of the fact, but that it includes implied notice, which arises where the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him, by the exercise of due diligence, to a knowledge of the particular fact. Citation of these conflicting authorities may be found in volume 5 of "Words and Phrases," on page 4840. In this case it is not necessary for this court to make a definite ruling upon that subject, because, as stated before, there was no evidence which called for a charge upon the question of implied notice resulting from knowledge of facts and circumstances sufficient to require further investigation. The other objections to the charge are untenable.

[2] The other assignments complain of the action of the trial court in refusing to give certain requested instructions, but the record fails to show that appellant reserved any exception to the rulings referred to, as required by statute, and therefore those assignments cannot be considered. I. & G. N. Ry. Co. v. Bland, 181 S. W. 504; Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184. No reversible error has been shown, and the judgment is affirmed. Affirmed.

Appellants have assigned error upon that paragraph of the charge, one contention being that the expression "actual notice" was misleading, and calculated to cause the jury to believe that it was necessary for appellants to prove that appellee had actual knowledge of the fact of dissolution, where as, it is contended that if he had knowledge of such facts as by the use of ordinary diligence would have resulted in actual knowledge of the dissolution, that would constitute CUMMER MFG. CO. v. KELLAM BROS. sufficient notice.

[1] If appellants' contention is correct, and the charge is subject to the criticism urged, still it affords no ground for reversing this case. There was no proof of any fact which made it the duty of the plaintiff to make any investigation concerning the partnership, One member of the firm remained in possession of the rented premises, while the others returned to their homes in other parts of

(No. 6012.)

(Court of Civil Appeals of Texas. San An-
tonio. April 17, 1918. Rehearing Denied
May 15, 1918.)

1. CORPORATIONS 503 (2)-VENUE.
action against a private corporation in any
Under Rev. St. 1911, art. 1830, authorizing
county in which a part of the cause of action
arose, it may be sued in the county in which its
breached contract to furnish goods was made
through its agents, and to and in which the
goods were to be delivered and paid for, in part
at least, even if the contract had to be sent to
the corporation for ratification.

QUESTION.

Whether the trial court should have proceeded to trial without waiting for decision of appeal from overruling of plea of privilege to be sued in another county, is an academic question, as decision thereof would not expedite a trial on the merits.

the state. It is true that a short time before the dissolution occurred the oil field at Thrall commenced to fail, and that the busi-2. APPEAL AND ERROR 843 (2)-ACADEMIC ness in which the firm was engaged soon ceased to be profitable, and the plaintiff was aware of those facts, but such knowledge did not put him upon inquiry. In other words, knowledge of those facts did not impose upon the plaintiff any duty to the appellants to ascertain whether or not the partnership continued, or had been terminated. and therefore there was no testimony which called for a charge upon notice implied from knowledge of facts sufficient to put the plaintiff upon inquiry.

Appeal from District Court, Frio County; Covey C. Thomas, Judge.

Action by Kellam Bros. against the Cummer Manufacturing Company. From an adjudgment, defendant verse appeals. Affirmed.

John D. Hartman, of San Antonio, for appellant. C. A. Davies, of San Antonio, and Frank H. Sweet, of Brownwood, for appel

There seems to be considerable diversity of opinion, if not direct conflict of authority, as to what constitutes actual notice. Some authorities holding that it means direct in-lee. formation and knowledge of the fact, while others hold that actual notice may be either express or implied. If the one, it is established by direct evidence; if the other, by proof of circumstances, from which it is inferable as a fact. These authorities hold that ac

FLY, C. J. This is a suit instituted by appellees to recover of appellant damages resulting from the breach of a contract to furnish crates in which appellees desired to ship their onion crop. Appellant filed a plea of

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