TION.

ably attributable to a nonactionable cause as 15. PARTNERSHIP (§ 20*)-EXISTENCE OF RELAto one that is, the law will not uphold a conclusion in the nature of a mere guess in favor of the latter.

[3] While it was appellant's duty to exercise a very high degree of care to furnish and maintain suitable cars and platforms upon which passengers could move with safety, it Iwas not an insurer in this respect, and the burden of proof rested on appellee to show such a state of circumstances as affords a reasonable conclusion of negligence as alleged. It is not sufficient for a plaintiff to show that the defendant may have been guilty of negligence; the evidence must point out that he was.

We conclude that in this appellee has wholly failed, and ‍that such failure entitles appellant to judgment. Texas & P. Coal Co. v. Kowsikowsiki, 118 S. W. 829, s. c. 103 Tex. 173, 125 S. W. 3; St. Louis, S. F. & T. Ry. Co. v. Cason, 129 S. W. 397. Such being our conclusion, and it further appearing that this case had been twice tried and fully developed, we think in the interest of all parties that the litigation should be brought to an end. It is, accordingly, ordered that the judgment be reversed and here rendered for appellant. Reversed and rendered for appellant.

LATION.

The mere allegation in the petition of joint ownership of the mules sought to be recovered was not equivalent to an allegation of partnership as to the mules.

[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 408, 409; Dec. Dig. § 213.*] 3. REPLEVIN (§ 8*)-ISSUES.

In an action by two persons to recover mules, or their value, which were claimed to have been converted by defendant, the questions whether plaintiffs were partners, and whether one plaintiff had paid the other for his interest therein, were immaterial.

to would furnish the money to purchase horses An agreement that one of the parties therewould not of itself constitute a partnership between the parties.

[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 6, 7; Dec. Dig. § 20.*] 6. PARTNERSHIP (§ 218*)-INSTRUCTIONS-DE

FINING TERMS.

A requested instruction submitting the issue of partnership was defective for not stating to the jury what would constitute a partnership.

Cent. Dig. §§ 49, 426-428; Dec. Dig. § 218.*] [Ed. Note.-For other cases, see Partnership, 7. PARTNERSHIP (§ 218*)—EXISTENCE OF RELA

TION.

An instruction, that if the purchase of horses by plaintiff was under an agreement by which defendant was to have a third interest therein upon paying to plaintiff a third of the price without fixing a time for payment, unless he paid such third within a reasonable time he would not be a partner in the stock, was not erroneous on the ground that it authorized the finding that failure to pay defendant's part of the price would dissolve the partnership, though a partnership had been consummated.

[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 49, 426-428; Dec. Dig. § 218.*1 Appeal from Knox County Court; J. H. Milam, Judge.

Action by G. H. Shawver and another against C. H. Coody. From a judgment for plaintiffs, defendant appeals. Affirmed.

Jas. A. Stephens, of Benjamin, for appellant. D. J. Brookreson, of Benjamin, and Robert Cole, of Crowell, for appellees.

DUNKLIN, J. G. H. and J. A. Shawver instituted this suit against Henry Coody to recover possession of three mules and one horse, or, in the alternative, the value thereof, also for $250, the value of two mules alleged to have been converted by the defendant; title to all of said stock being claimed by the plaintiffs. Judgment was recovered by plaintiffs, and the defendant has appealed.

The animals in controversy originally belonged to a herd of 37 head of horses and mules purchased at public sale; plaintiff G. H. Shawver furnishing the purchase money therefor, and defendant Coody bidding in the stock and taking and holding possession thereof for quite a long period of time. According to the testimony of plaintiff, G. H. Shawver, he agreed with Coody prior to the purchase that he (Shawver) would furnish the purchase money, and after the purchase Coody and plaintiff J. A. Shawver might each become the owner of a one-third interest in the stock upon payment of one-third of the purchase price, but that Coody had never paid, or offered to pay, such consideration, and had refused to turn over to the plaintiffs the stock in controversy. According to Coody's testimony, prior to the auction [Ed. Note. For other cases, see Partnership, sale noted, plaintiff G. H. Shawver had Cent. Dig. 88 49, 426-428; Dec. Dig. § 218.*] agreed unconditionally that, if he (Coody) For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 45-68; Dec. Dig. § 8.*] 4. Partnership (§ 218*)-EXISTENCE OF RELA

TION-SUBMISSION OF ISSUE.

In an action to recover possession of mules claimed to have been converted by defendant or their value, whether defendant was the partner of plaintiff need not be submitted; the evidence not tending to show a partnership.

would bid in the herd, G. H. Shawver would | defendant's favor. In order to establish the furnish the purchase money, and that the alleged partnership between the plaintiffs two plaintiffs and Coody would become partners and own the stock in equal shares, and that J. A. Shawver and Coody should each owe to G. H. Shawver one-third of the purchase price of the stock. The difference in these two versions of the terms of the agreement was the only controverted issue upon the trial.

and the defendant, it would have been necessary for the defendant to show, not only that he acquired an interest in the stock, but also further facts necessary to constitute a partnership. The charge given by the court was therefore more favorable to the defendant than the two requested instructions last noted.

[5, 6] Furthermore, one of the requested instructions was erroneous, in that it contained the proposition that, if it was agreed between the parties that G. H. Shawver would furnish the money to purchase the horses, that agreement alone would constitute a partnership between them, and the other requested instruction submitted the is

[1] The allegation contained in Coody's answer of a partnership formed between the two plaintiffs and himself for the ownership and management of the herd was specially denied by plaintiffs in their supplemental petition, and this pleading was verified by plaintiffs before one of their attorneys who acted as notary public in taking the affidavit. Defendant's special exception to this plead-sue of partnership with no guide to the jury ing on the ground that the attorney was not a proper official to take the affidavit was correctly overruled. Ryburn v. Moore, 72 Tex. 85, 10 S. W. 393; Kosminsky v. Ray-quested instructions are overruled. mond, 20 Tex. Civ. App. 702, 51 S. W. 51.

ners.

for the purpose of determining what would constitute a partnership. Hence the assignments complaining of the refusal of the re

[7] Complaint is also made of an instruction given by the court, in effect, that if the purchase of the stock was made under an agreement whereby defendant was to have a one-third interest in the stock provided he would pay to G. H. Shawver one-third of the purchase price and no time fixed for such

[2, 3] G. H. Shawver, after testifying that his brother, J. A. Shawver, owned an interest in the horses in question and that defendant did not own any interest in them, was asked by defendant's counsel if J. A. Shawver had ever paid to witness any part of the purchase money for the herd. Plaintiffs object-payment, the defendant would have a reaed to this question on the ground that de- sonable time to pay the same, and, unless he fendant had not by answer denied under paid the same within a reasonable time, he oath allegations in plaintiffs' petition that would not be a partner with the plaintiffs in the two plaintiffs owned the horses as part- the stock. The criticism of the instruction This objection was sustained, and this is that by the instruction the jury were auruling is made the basis of the second assign- thorized to find that, although a partnership ment of error. While the petition claimed a│had been in all things consummated, the dejoint ownership of the horses in plaintiffs, there was no allegation of a partnership between them, nor of any fact that would constitute a partnership. Evidently the allegation of joint ownership was construed by the court as equivalent to an allegation of partnership in the plaintiffs in such ownership, which was incorrect. However, the issue of whether or not the plaintiffs were partners in the ownership of the horses was immaterial, and it was also immaterial whether or not J. A. Shawver had paid his brother for his interest in the horses. Accordingly, the second assignment of error is overruled.

fendant's failure to pay his portion of the purchase price would dissolve the partnership. By the very terms of the instruction the acquisition of an interest in the property by the defendant was made to depend upon the payment by the defendant of one-third of the purchase price. In other words, the agreement submitted was merely one giving the defendant an option to become the owner of an undivided one-third interest in the stock, and, according to the defendant's own testimony, he never paid nor offered to pay any part of the purchase price. For this reason there is no merit in the assignment. Another paragraph of the court's charge is

evidence in assuming that the stock in question belonged to the plaintiffs; but, when considered in connection with other instructions contained in the charge clearly submitting that issue as a disputed issue, it is altogether improbable that the jury interpreted the charge in the manner suggested in the assignment.

[4] Appellant complains of the refusal of two special instructions requested by him up-criticised as being upon the weight of the on the issue of partnership between himself and the plaintiffs. Whether or not the defendant was a partner of plaintiffs was an immaterial issue. His contention, that plaintiff G. H. Shawver agreed unconditionally that as soon as the herd was purchased defendant should become the owner of a one-third interest therein and should thereafter pay one-third of the purchase price, was submitted to the jury in the court's charge, together with an instruction that, if that contention was sustained by the evidence, a verdict should be returned in the

There is no merit in appellant's seventh assignment complaining of an instruction permitting a finding in plaintiffs' favor of compensation for the use of certain animals claimed by the plaintiffs and used by the de

the court erred in overruling plaintiff's motion full amount claimed by defendant's plea, except for a new trial because the jury allowed the the sum claimed as damages for the breach of warranty, was too general to require consideration.

Error, Cent. Dig. 88 3022-3024; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 732.*1

fendant, since it appears from the verdict | damages for torts, an assignment of error that of the jury that no such allowance was made. We are of the opinion further that the evidence was ample to support the verdict. By another assignment it is insisted that the judgment should be reversed because the court failed to prepare a correct statement of facts. In answer to this assignment, it is sufficient to say that a statement of facts prepared by the judge and duly certified appears in the record, and that appellant has not attempted in any manner to point out wherein the statement of facts is defective, neither has he submitted any motion to strike it from the record.

The judgment is affirmed.

GILLISPIE v. AMBROSE et al. (Court of Civil Appeals of Texas. Nov. 1, 1913.)

Ft. Worth.

1. LANDLORD AND TENANT (§ 223*)-CLAIMS ARISING OUT OF THE SAME TRANSACTION.

Under Rev. Civ. St. 1911, art. 1330, providing that the preceding article, which pro vides that, if plaintiff's cause of action be a claim for unliquidated or uncertain damages founded on a tort or breach of covenant, the defendant shall not be permitted to set off any debt due him by the plaintiff, and, if the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant. shall not be so construed as to prohibit the defendant from pleading in set-off any counterclaim founded on a cause of action arising out of, incident to, or connected with plaintiff's cause of action, in a landlord's action to recover rent and compensation for the use of farming implements and mules, the defendant could set up as a counterclaim a breach of warranty of two horses which he agreed to buy from the landlord in part consideration for the lease, since this claim arose out of plaintiff's cause of action.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 885-893; Dec. Dig. § 223.*]

2. PLEADING (§ 228*)-EXCEPTION TO PLEAD ING GOOD IN PART.

An exception to five counts in a petition of reconvention was properly overruled where one of the counts stated a proper counterclaim. [Ed. Note. For other cases, see Pleading, Cent. Dig. 88 584-590; Dec. Dig. § 228.*]

5. TRIAL ( 250*)-INSTRUCTIONS-CONFORMITY TO PLEADINGS AND EVIDENCE.

Where, under a plea of reconvention alleging that defendant had falsely and maliciously declared that defendant was a dishonest person, owed plaintiff money that he would not pay, and for which she held a lien on his cotton, by reason of which acts defendant was unable to market his cotton in the town of A., where he was accustomed to sell his crops, and had been suspected by his neighbors and others of being dishonest, lost their respect, and suffered withal humiliation, there was neither allegation nor evidence of the amount of pecuniary loss resulting from defendant's inability to market his crop, the claim set up should not have been submitted to the jury.

Dig. §§ 584-586; Dec. Dig. § 250.*]
[Ed. Note. For other cases. see Trial, Cent.

6. APPEAL and Error (§ 1140*)-CURE OF ER-
BOR BY REMITTITUR.

Where defendant, under a plea of reconvention in a number of counts claiming in the aggregate $196.50, obtained a verdict of $136.50, indicating that the jury allowed a portion of a claim of $70, which under the pleadings and evidence should not have been submitted, the judgment would be reversed unless defendant filed a remittitur of the whole $70.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. § 1140.*]

Appeal from Jones County Court; Joe C. Randel, Judge.

Action by Mrs. Jerome Gillispie against J. W. Ambrose and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, unless plaintiff files remittitur.

H. H. Sagebiel, of Ganado, and W. S. Pope, of Anson, for appellant. Brooks & Brooks, of Anson, and Davenport & Davenport, of Stamford, for appellees.

DUNKLIN, J. J. W. Ambrose and Guy Ambrose rented land from Mrs. Jerome Gillispie, who instituted this suit against them

3. PLEADING (§ 228*)-DEMURRER-OPERATION to recover several items claimed to be due AND EFFECT OF DECISION ON DEмurrer.

An exception of misjoinder of causes of action is properly addressed to the entire pleading, and, if sustained, the entire pleading is stricken out, leaving it optional with the pleader to select such portions of the plea as he may see fit, and the court cannot make this selection for him; and hence an exception to five counts in a plea of reconvention for misjoinder, by which it was proposed to strike out such counts and permit three other counts to remain, was properly

overruled.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.*] 4. APPEAL AND Error (§ 732*)—ASSIGNMENTS OF ERROR-SUFFICIENCY.

In a landlord's action for rent and for com

pensation for the use of farming implements and mules, in which the tenant filed a plea of reconvention for breach of warranty and to recover

for rents and for the use of farming implements and mules. But the suit was dismissed as to the defendant Guy Ambrose. J. W. Ambrose, in addition to a general denial, filed a plea in reconvention in which he sought to recover for certain labor performed for the plaintiff and in which he further sought to recover damages, the nature of which will hereinafter be noted. Judgment was rendered upon the verdict of a jury denying plaintiff any recovery and awarding defendant a recovery against the plaintiff for $136.50, from which plaintiff has appealed.

The land was rented for two years, as shown by two leases, which were in writing, and one of them contained the stipulation

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

that defendant would purchase from the out of an alleged breach of warranty of the plaintiff two horses and would pay plaintiff condition and ages of the two horses which for one of them $100 and for the other $135. This agreement to purchase the horses was one of the considerations for the lease to the defendant.

[1, 2] Plaintiff addressed an exception to those five counts in the petition collectively, which was overruled. By the first assignment of error complaint is made of that ruling. By the first proposition it is insisted that the damages claimed and to which the exception is addressed are for tort and breach of covenant, which cannot be pleaded and set off against plaintiff's claim, which is a certain demand. By the second proposition it is insisted that, if plaintiff's demand be unliquidated, defendant's counterclaims cannot be offset because they constitute unliquidated demands and are founded upon alleged torts. As noted already, the claim made in the fourth count in the plea We are unable to say that the jury allowed in reconvention was for damages growing the defendant a recovery for attorney's fees

of Vendor-Lien.

A vendor of real estate retains the superior title until the purchase money is paid.

in defending him in the criminal prosecution | 2. VENDOR and Purchaser (§ 54*)—REMEDIES noted above and for the $5 claimed for loss of time in attending court. Hence the sixth assignment of error, in effect that the trial court erred in overruling the motion for new trial because those two items were allowed by the jury, is overruled.

[5, 6] The aggregate of all the items claimed by the defendant in his plea of reconvention was $196.50. By the verdict the defendant was allowed a total of $136.50, thus indicating that they allowed at least a portion of the claim of $70 made in the seventh and eighth counts of the plea for the alleged publication of false reports concerning the appellant. The only false statement alleged to have been made by the plaintiff and upon which the claim for damages in these two counts was predicated consisted of an assertion by the plaintiff that defendant was indebted to her for rents, and that for such indebtedness she held a lien upon the cotton grown upon the farm by the tenant, and the only predicate for damages claimed as a result of such false statement was that the de

[Ed. Note. For other cases, see Vendor_and Purchaser, Cent. Dig. § 85; Dec. Dig. § 54.*] 3. CHATTEL MORTGAGES (§ 138*)-LIEN-PRI

ORITY.

Rev. Civ. St. 1911, art. 5475, gives to a landlord a preference lien upon the crops raised for any rent and for money and supplies furnished to the tenant in making a crop. A purchaser in possession of land, subject to a ven23, 1911, executed to defendant a chattel mortdor's lien in favor of the plaintiff, on November gage on cotton to be raised the next year on the land, and thereafter on March 26, 1912, before any crop had been planted, conveyed to rental contract with plaintiff for the lands. plaintiff, and the same day entered into a Held that, though a chattel mortgage upon property not in existence may become operative possession of the mortgagor, yet that, as the if the property subsequently comes into the mortgagor never acquired any but a qualified interest in the crop, the landlord's lien thereon was superior to that of the mortgagee.

[Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. §§ 228–236; Dec. Dig. § 138.*] Appeal from Parker County Court; T. F. Temple, Judge.

R. L. Stennis, of Weatherford, for appellant. Preston Martin, of Weatherford, for appellee.

fendant could not market his crop in the town of Anson, and that he sustained feelAction by W. T. Ivy against H. R. Pugh, ings of humiliation and was suspected of dis-J. M. Hart, and another. Judgment for honesty by his neighbors on account of such defendant Hart, and plaintiff appeals. Recharges. The amount of pecuniary loss reversed and judgment rendered for plaintiff sulting from his inability to market his cot- against defendant Hart. ton in the town of Anson was neither alleged in the plea nor supported by any testimony. Such being the record, the court should not have submitted to the jury the claim last noted. Accordingly appellant's seventh assignment of error to the trial court's refusal of the motion for new trial is sustained, and, because this claim was allowed, in part, at least, the judgment will be reversed and the cause remanded, unless appellee shall within ten days from the rendition of this decision file a remittitur of $70, the full amount of the claim last referred to. If such remittitur is filed within the period indicated, the judgment will be so reformed as to be in favor of appellee for $66.50 only and in all other respects affirmed, otherwise the judgment will be reversed and the cause remanded for another trial. In either event the costs of appeal are taxed against the appellee.

IVY v. PUGH et al. (Court of Civil Appeals of Texas. Nov. 8, 1913.)

SPEER, J. This suit was instituted by W. T. Ivy against H. R. Pugh, J. W. Light, and J. M. Hart, alleging that the defendant Hart had wrongfully converted to his own use certain cotton upon which plaintiff as landlord held a valid lien as against Pugh and Light, his tenants. Hart pleaded that he took the cotton under a mortgage lien which was prior in law to plaintiff's lien. The honorable county judge before whom the case was tried made the following findings of fact, which we adopt:

"1. I find that on the 10th day of September, 1909, the defendant H. R. Pugh purchased 70 acres of land from one H. Burns in Parker county, Tex., and the said H. R. Pugh with his family has resided upon said 70 acres of land since said purchase.

"2. About the same time the defendant J. W. Light purchased a small farm of about 70 acres, situated near the said farm of H. Ft. Worth. R. Pugh, and since said purchase has resided with his family on said farm.

1. ESTOPPEL (§ 37*)-PROPERTY SUBJECT-AFTER-ACQUIRED PROPERTY-CROPS.

A chattel mortgage upon property not in existence may become operative if the property covered subsequently comes into the possession of the mortgagor, on the equitable principle of estoppel, rather than on the principle that the execution of the mortgage then creates a valid lien upon the thing mortgaged. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 91-98; Dec. Dig. § 37.*]

"3. On the 1st day of July, 1910, the said H. R. Pugh and. J. W. Light purchased from F. M. Copps 70 acres of land joining said farms of H. R. Pugh and J. W. Light for the consideration of $1,400. That the title to said 70 acres was then in F. M. Copps, by agreement of all parties, the conveyance was made by deed direct from F. M. Copps to H. R. Pugh and J. W. Light, and the total conFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes