convenience, discomfort, etc., on account of the operation of the trains on the said side track, in the absence of pleading and proof of negligence on the part of appellee in the use and operation of said side track. It is a well-settled rule in this state that a railroad company, which has legally acquired its right of way, has a legal right to operate its road, its main line, and all necessary side tracks and switches, in the prosecution of its public business and so long as such operation is properly done, that is to say, so long as its road and necessary side tracks are operated with proper care and without negligence, a person, although he may suffer injury in the way of personal inconvenience by reason of noise, vibration, smoke, etc., cannot hold the railway company liable in damages. This rule is so well settled that it needs no citation of authority at our hands. Being of the opinion that the trial court was in error in sustaining the general demurrer, the judgment is reversed, and the cause remanded for a new trial, consistent with the views above expressed. THOMPSON v. THOMPSON. (No. 8070.) In a suit by a father to annul the marriage of a minor son, a temporary injunction, restraining defendant and her counsel from communicating with the son, would deprive defendant and her counsel of the right to communicate with a view of taking son's testimony in the trial of the case, and will be modified so as to permit communication for the purpose indicated. Appeal from District Court, Navarro County; H. B. Daviss, Judge. On second motion for rehearing. ruled, except as indicated. Over For former opinion, see 202 S. W. 175. M. M. Crane, of Dallas, and Callicute & Johnson, of Corsicana, for appellant. Richard Mays, of Corsicana, and Etheridge, McCormick & Bromberg, of Dallas, for appellee. TALBOT, J. The appellant's second motion for rehearing, except as hereinafter indicated, will be overruled. We see no good reason for the changing of our rulings on questions heretofore raised, and, for the reasons given in our original opinion, we must adhere to them. The copy of the petition purporting to have been filed by William Thompson, by his next friend, and father, J. A. Thompson, in the district court of Bryan county, Okl., seeking to annul his marriage and that of appellant, in which he states, among other things, that to secure the license authorizing the celebration of the marriage of him and appellant, the said William Thompson, in the presence of ap pellant, and with her acquiescence and consent, represented to the licensing officer that he and appellant were of legal age and competent to enter into the marriage relation and contract without the consent of the parents or guardians, and the copy of the original affidavit made by the said William Thompson, before the clerk of Bryan county, Okl., for the purpose of procuring a marriage license and other exhibits attached to the second motion for rehearing, for clear and obvious reasons cannot be considered now by this court. The complaint, however, that the unqualified affirmance of the sweeping order of the district judge, who granted the temporary injunction in this case, will have the effect to deprive appellant and her counsel of the right to communicate with the said William Thompson with the view of taking his testimony in the trial of the cause now pending in the district court of Navarro county, Tex., as well as in the cause pending in the district court of Bryan county, Okl., or in any way communicating with him to find out what his testimony would be upon the matters complained of in the plaintiff's petition, are probably well founded. The appellant and her counsel were enjoined by the temporary writ issued from having any communication with William Thompson by letter, telephone, telegram, signs, or otherwise. This language is broad enough to have the effect suggested by appellant, and, literally construed, would deprive the appellant of a legal right, as contended by her, to communicate with the said William Thompson for the purpose of ascertaining what his testimony would be upon the trial of the cause, and from taking his testimony in the event it should be regarded as material to her defense. The judgment of the lower court will therefore be reversed in this particular, and the temporary injunction modified so as to permit the appellant or her counsel for the purposes indicated to communicate with William Thompson. The motion for rehearing in all other respects is overruled. SCHAUB v. RUCKER & HEARTSILL. (No. 7982.) (Court of Civil Appeals of Texas. Dallas. May 25, 1918.) TRIAL 260 (1)-REQUESTED INSTRUCTIONS. There is no error in refusing a charge, the principle of which is embodied in the main charge. Appeal from Dallas County Court; T. A. Werk, Judge. Action by Rucker & Heartsill against Adam Schaub. Judgment for plaintiffs, and defendant appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Short & Field, of Dallas, for appellant. | lert. Judgment for plaintiff, and defendant Lively & Goggans, of Dallas, for appellees. appeals. Affirmed. RAINEY, C. J. This is an appeal from a judgment in favor of appellees for the sum of $252, with interest at the rate of 6 per cent. per annum from date of judgment. There are several assignments of error presented by appellant, complaining of the action of the trial court in sustaining objections to testimony, in refusing to give special instructions requested by appellant, in giving special instruction requested by appellees, and that the judgment is contrary to and not warranted by the evidence. We have given each assignment due consideration, and conclude that no reversible error is contained in the record. The case was tried before a jury, and the evidence warranted the verdict. The court's charge was correct, and presented the necessary issues. The charges requested by appellant that were correct were either given or the principle embodied in the main charge. The testimony rejected was not prejudicial to appellant. The principles announced in Bellis v. Hann, 157 S. W. 427, govern this case, and the judgment is affirmed. SCHALLERT v. BOYD. (No. 6047.) (Court of Civil Appeals of Texas. San Antonio. May 22, 1918.) 1. APPEAL AND ERROR 692 (1)—SUFFICIENCY OF BILL OF EXCEPTIONS. -Where the exclusion of a statement of account and the refusal to permit witness to testify as to items thereof are assigned as error, the assignments will be overruled, where bills of exception do not contain statement or show what witness would have testified to; the court being unable to ascertain if error was prejudicial. 2. APPEAL AND ERROR 1064(2)-HARMLESS ERROR-INSTRUCTIONS. Pope & Sutherland, of Corpus Christi, for appellant. Suttle & Todd and Dawson & Anderson, all of Corpus Christi, for appellee. MOURSUND, J. Mrs. V. L. Boyd, as the surviving wife of V. L. Orr, deceased, and as guardian of the estates of the minors, Mary, Vallie B., Zanna, Lillian, and Dora Orr, sued Robert Schallert, to recover $815, claiming $750 to be due as one-half the value of 12 mules in the possession of defendant, belonging to a partnership composed of V. L. Orr, deceased, and said Schallert, and the sum of $65 as the value of a cow or calf presented by Schallert to one of the minors, and afterwards taken by him from the possession of such minor. The trial resulted in a verdict and judgment for $815. [1] By the first five assignments complaint is made of the exclusion of evidence. The first relates to a certain statement of items of the partnership account, and the second to the refusal to permit a witness to testify as to the items contained in such statement. The bills of exception do not contain the statement, and we are left to infer that injury might have resulted from its exclusion. Assignments 3, 4, and 5 relate to the exclusion of evidence of value of the mules, but the bills of exception fail to show what the witnesses would have testified, and therefore fail to show reversible error. As we are unable to determine from the bills of exception whether any of the rulings were prejudicial to appellant, all of such assignments are overruled. Pridham v. Weddington, 74 Tex. 354, 12 S. W. 49; Shippers Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032. [2] By the sixth assignment a paragraph of the charge is complained of as being upon the weight of the evidence, in that it would indicate to the minds of the jury that the indebtedness which would be a legal charge against the partnership, and to be deducted from the value of the firm property sued for by plaintiff, did not exceed $300. The charge is unusual, but was drawn in an effort to fol An instruction, intimating that indebtedness chargeable against partnership property did not exceed certain amount, although on weight of evidence, was harmless, where appellant, who was accountable for partnership property, failed to specify in his statement any evidence from which jury could have found amount to be 3. APPEAL AND ERROR 213, 882(14)—PRES-low the pleadings of the plaintiff in which it ERVATION OF OBJECTION-SUBMISSION OF ISSUE TO JURY. greater. The sufficiency of evidence to justify submission of an issue to the jury will not be reviewed on appeal, where no objection to the sufficiency of such evidence was made at time of submission of issue, and where appellant asked for charge on burden of proof thereon. 4. PARTNERSHIP 249-DEATH OF PARTNER -RIGHTS OF SURVIVING PARTNER. The was stated that the expenses of the partnership other than the amount paid for stock did not exceed $300, but it was not admitted did not exceed $300, but it was not admitted that the same amounted to such sum. charge really places the burden on plaintiff to show that the debt of the firm, or rather the amount chargeable against the firm, did not exceed $300; and unless the jury so found, the plaintiff had not made out a case. Of course, the defendant was not injured if the charge be viewed in that light. On the other hand, if it be construed as an intimation that the sum thus chargeable did not exAction by Mrs. V. L. Boyd as surviving ceed $300, the defendant shows no injury, wife and as guardian against Robert Schal- for he fails to point out in his statement A surviving partner has no right to keep and refuse to sell partnership property, and thus avoid accounting to heirs of deceased partner. Appeal from Nueces County Court; David M. Picton, Jr., Judge. any testimony from which the jury could have found a greater sum to be thus due than such sum of $300. In fact the statement shows that appellant contends he was deprived, by excluding his evidence, of the right to prove that such expenses exceeded $300. Of course the charge must be judged by the evidence admitted, and not by that excluded. Appellant's brief shows no error such as would require a reversal of the judgment, and the assignment is overruled. [3, 4] By the seventh assignment it is contended no testimony was introduced showing that Schallert ever disposed of the mules on hand at Orr's death, and showed that plaintiff could have no interest until the mules were disposed of at a profit; that Schallert did not agree to purchase any mules belonging to the partnership. The proposition is abstract, and we are at a loss to comprehend exactly what appellant contends. The assignment amounts to a contention evidently that the evidence was insufficient to justify submitting the issues to the jury in so far as they related to the partnership business. However, as no objection was made to such submission, except as to the form, and defendant asked a special charge on the burden of proof, it appears that he is in no position to contend that there was no evidence to go to the jury. Modern Woodmen v. Yanowsky, 187 S. W. 728, and cases therein cited. There can be no merit in the contention that Schallert could keep the mules as long as he wanted to after the death of his partner, and thus avoid accounting for the profits made in the conduct of the partnership business. The judgment is affirmed. HALSELL et al. v. FERGUSON et al. (No. 7665.) (Court of Civil Appeals of Texas. Dallas. May 25, 1918.) Appeal from District Court, Dallas County. Suit by Hugh W. Ferguson and others against J. W. Halsell and others. From an order directing issuance of a temporary writ of injunction as prayed, defendants appeal. Judgment affirmed in conformance to answers to questions certified to the Supreme Court (202 S. W. 317). Adams & Stennis, of Dallas, for appellants. Cecil L. Simpson, of Dallas, for appellees. TALBOT, J. The appeal in this case is from an order of the district court of Dallas county, Tex., directing the issuance of a temporary writ of injunction, as prayed for by the plaintiffs below, appellees here, restraining the appellants, their agents and representatives, from building a house on lots 5 and 6 in block 668 of the city of Dallas, Dallas county, Tex., except in so far as the same may conform to the frontage of said lots on Harry avenue, as originally platted, in said city. The questions arising upon the appeal material to a decision of the case were by this court certified to the Supreme Court for adjudication, and the answers of that court require an affirmance of the judgment of the district court. For a full statement of the nature of the case, and the questions certified and decided by the Supreme Court, we refer to the opinion of the court to be found in 202 S. W. at page 317. The Supreme Court, in answering the certified questions, held that section 3 of article 1 of the charter of the city of Dallas and section 2 of the ordinance of said city, constituting a part of what is known as the Building Code of said city, and which provides "that wherever any lots are laid off by any plat, showing a frontage for said lots on any street or avenue in the residence section of the city, all buildings erected on same shall keep their frontage on said street or avenue so as to conform to the frontage of the lots shown on such plat," was a valid exercise of the police power of the state and the city, and that, since the appellees purchased their property after appellant Halsell and associates had, by a map, with certificate of dedication attached, placed of record, extended Harry avenue to California avenue and subdivided their originally proposed blocks numbered 1 and 2 and fronting lots 5 and 6 of said block 2 on Harry avenue, and before the board of commissioners of the city, by resolution adopted, permitted the said Halsell and associates to amend and change said map, so as to front said lots 5 and 6 on California avenue, and since appellees had purchased their property fronting on Harry avenue with reference to the platting ing lots 5 and 6 on Harry avenue, which map and map made by Halsell and associates, frontwas accepted by the city of Dallas, said board of commissioners had no legal right to authorize or permit such change in the plat without consent of appellees, but that such facts precluded and estopped the city and appellants from changing the frontage of appellant's lots from Harry avenue, and from erecting a resithe frontage on Harry avenue. The court say: dence thereon otherwise than in conformity to "The principles announced in Harrison v. Boring, 44 Tex. 266, 273, compel the conclusion that, when appellees purchased their property in reliance on the representations embodied in the plat filed by appellants and approved by the city, the property of appellants became impressed with easements or servitudes, of which appellees or their assigns could not be deprived without their consent." It would serve no useful purpose for us to attempt to add anything to the discussion of the Supreme Court, and, adopting the opinion of that court, the judgment of the district court will be affirmed. Affirmed. Where, pursuant to agreement between Q. and E. for exchange of lands, Q. conveyed by direction of E. a tract to plaintiff, and plaintiff was forced to pay for improvements, and brought suit against E. and Q., in which suit E. set up a counterclaim, that, if plaintiff was entitled to recover from him, he was entitled to recoup from Q., a verdict against E. was responsive to the issues, and would support judgment for plaintiff against E., which judgment in addition adjudged that plaintiff take nothing against Q.; a verdict against E. disposing of his counterclaim. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A jury finding supported by evidence will not be disturbed on appeal. 3. APPEAL AND ERROR 877(4) PARTIES ENTITLED TO ALLEGE ERROR. Plaintiff's right to recover against appellant's codefendant, as well as against appellant, being a matter affecting plaintiff's rights only, appellant cannot complain. 4. CONTRACTS --- 100 MUTUAL MISTAKE PEREMPTORY INSTRUCTION. That the other provisions of a contract are correct, and that the complaining party had ample opportunity to discover omission, is not conclusive on issue of mutual mistake, so as to warrant a peremptory instruction, but a mere circumstance be considered by the jury. 5. EVIDENCE 433(6) — PAROL EVIDENCE OMISSIONS IN CONTRACT-MISTAKE. Where terms and conditions of a contract have by mutual mistake been omitted, it is competent to show such fact and supply the omission by parol. 6. TRIAL 260(9) TIONS-REFUSAL. REQUESTED INSTRUC JURY transpired that certain improvements on said land were the property of Qualls' son and tenant, and, to prevent their removal by said tenant appellee Ferguson paid the sum. sued for, which was their value; that said improvements were permanent fixtures on said land, and that he was, as a consequence, entitled to recover the value thereof from both defendants. In the justice court appellee Qualls answered by general demurrer and general denial. Appellant Estes in that court filed plea of privilege to be sued in Deaf Smith county, his residence, to which county he prayed the cause be transferred. Subject to said plea he alleged a misjoinder of parties, in that joint liability was not alleged, since the liability alleged against appellant, Estes, was upon contract, while that alleged against Qualls was breach of warranty. On the merits, he pleaded in substance that he did agree to convey the land to appellee Ferguson, and that the conveyance by Qualls to Ferguson was by his direction and in compliance with agreement between him and Qualls; that while he did not at the time know the improvements on the land were the property of Qualls' tenant, yet appellee Ferguson did and was advised that the tenant had the right to remove same, and acquired the land subject to that right. Prayer was that, if appellee Ferguson recovered of Estes, he in like manner recover against Qualls. In the justice court the plea of privilege was overruled. Upon jury trial there was verdict for appellee Ferguson against appellee Qualls, and for appellant, Estes, followed by similar judgment. Appeal was had to the county court. In that court appellee Qualls amended his answer, in which on the merits he averred, in substance, among other matters, that he con The effect of a charge that, unless the jury believed it was understood between named parties that the improvements were to be reserved, but through mistake or oversight certain provision was omitted, etc., was the same as a refused requested instruction that the omission in the contract must have been by the mutual mistake of the parties, and the jury was not misled by failure to use the word "mutual." 7. VENUE 22(1) — DEFENDANTS RESIDING IN DIFFERENT COUNTIES. Where in compliance with his contract with plaintiff, E. procured Q. with the consent of plaintiff to convey land to plaintiff, E. receiving the consideration, the contract to convey was satisfied by the joint act of E. and Q., and an action for breach of warranty, concerning ownership of improvements, could be brought against both E. and Q. in the county where Q. resided, in view of Vernon's Sayles' Ann. Civ. St. 1914, art. 1830, subd. 4, providing that suit against two or more defendants may be maintained in the county of the residence of any of the defendants. Appeal from Hill County Court; R. T. veyed said land to Ferguson for appellant, Burns, Judge. Action by John A. Ferguson against John Estes and another. Judgment against defendant named, and he appeals. Affirmed. Collins, Morrow & Morrow, of Hillsboro, for appellant. J. Webb Stollenwerck and T. H. Jackson, both of Hillsboro, for appellees. Estes, who received the consideration therefor, and that said Estes knew before he contracted to purchase said land from appellee Qualls that the improvements were the property of another, and were to be reserved and removed from the land; that the agreement between himself and Estes was that said improvements were to be reserved to the real owner, but that by accident or mistake said agreement was omitted from the written contract. There was jury trial in county court, the verdict being for appellee Ferguson against appellant Estes for $142.65. Judgment followed the verdict, and, in addition, adjudged that appellee Ferguson take nothing against appellee Qualls, and that the latter recover all costs. RASBURY, J. Appellee Ferguson sued R. H. Qualls and John Estes in justice of the peace court to recover $175. Ferguson alleged that prior to the suit appellant, Estes, contracted in writing to convey to appellee Ferguson by general warranty deed certain lands in Hill county then owned by appellee, R. H. Qualls, who had simultaneously in like manner agreed to convey said land to appellant, Estes, or his order, and that sub- The facts necessary to be stated are that sequent to both contracts appellee R. H. Estes and Qualls agreed to an exchange of Qualls, by direction of appellant, Estes, con- lands. The agreement was in writing, and veyed said land to appellee Ferguson by gen- provided, among many other matters, that eral warranty deed, the consideration there- the lands should be conveyed to the contractfor being paid to appellant, Estes; that af- ing parties or their respective orders by genter said conveyance to appellee Ferguson iteral warranty deeds. Concurrently with the foregoing agreement Estes agreed to sell and ing the jury of the contentions of the reFerguson to purchase one of the tracts of spective parties, instructed them, in subland which Qualls was to convey to Estes in stance, that if they believed, in view of the their exchange. This agreement was in writ- deed from Qualls to Ferguson, and in view ing, and, among other matters, provided that of the contract between Estes and Ferguson, the conveyance should be by general war- and in view of the oral evidence, it was the ranty deed, but that Estes should not be intention to convey the improvements with compelled to convey to Ferguson if he failed the land, to return verdict for Ferguson to acquire the land from Qualls. Neither against Qualls; but if, in view of the deed, contract contained anything in reference to the contract, and the oral evidence it was the ownership of the improvements upon the agreed between Qualls and Estes that the imland, nor any reservation thereof to the pro-provements were to be reserved, and such posed vendors or another. Subsequent to agreement was by mistake omitted from the the foregoing Estes conveyed to Qualls the lands he agreed to exchange, and Qualls similarly conveyed his land to Estes, save the tract Estes agreed to convey to Ferguson. This tract Qualls, under his agreement with Estes, conveyed by direction of Estes to Ferguson. The improvements on said tract were the property of Qualls' son and tenant, from whom Ferguson purchased them in order to prevent them being removed. The evidence introduced upon trial was sufficient to sustain a finding that Ferguson did not know that the improvements on the land belonged to the tenant and were to be reserved. Likewise the evidence would have sustained a finding that he did know the improvements belonged to the tenant and were reserved from the conveyance. The evidence will also sustain a finding that in the negotiations between Estes and Qualls for an exchange of properties Estes was informed that the improvements belonged to belonged to the tenant, the tenant, and agreed that they should be reserved, but by accident or mistake the agreement was omitted from the written contract. Likewise the evidence would sustain a finding that Estes had no information concerning the ownership of the improvements, and that it was never agreed that the same should be omitted from the contract, and that there was in that respect no accident or mistake. Prior and subsequent to filing the suit Estes resided in Deaf Smith county. During said time Qualls resided in Hill county. [1, 2] The first contention in effect is that the judgment is void because based upon verdict that is not responsive to the issues. The basis of the contention is that the jury returned no verdict upon the claim of Estes that if Ferguson was entitled to recover judgment against him he was in turn entitled to recoup against Qualls. Appellant Estes' pleading, so far as relates to appellee Ferguson, in effect asserts that there was no agreement between them concerning the improvements, and that he did not know that the improvements in fact belonged to the tenant, but asserts that Ferguson did, and with such knowledge accepted the land; and, so far as it relates to appellee Qualls, his pleading asserts that the matter is controlled by the contract between them, which did not reserve the improvements. The pleading so standing, the court, after advis written contract, to return verdict in favor That is We think [3] Appellant, Estes, urges that the court erred in submitting the issue of mistake, as between Estes and Qualls, as a basis for appellee Ferguson's recovery. for reasons hereinafter stated that the issue of mistake was correctly submitted between Estes and Qualls; and, while we are inclined to think it might be argued with some reason that appellee Ferguson was entitled to a recovery against both Estes and Qualls, yet that is a matter that can be complained of only by Ferguson, and cannot form the basis of a complaint by appellant, Estes. |