Johnson's care $645 in money to buy these cattle with. I furnished the above sum of money. I don't know how much money Joe Johnson furnished in the buying of the cattle. I took about two car loads of them-about 80 head-to Clay county, Texas, and placed them in Mr. W. B. Worsham's pasture. They were branded V X on the left side. It was my brand. The other cattle were afterwards taken to Worsham's pasture in Clay county, and they were branded the same. I kept the cattle in W. B. Worsham's pasture in Clay county. I don't know where they are at. Johnson sold them to Worsham. * * When we bought the cattle it was agreed between me and Johnson that I was to have control and management of the cattle, and was not to have any brand put on them but my own brand. * * * Joe Johnson and me never entered into any partnership. We only bought this one lot of cattle jointly." It was in proof that Vignal had the V X brand recorded in his name in Clay county October 22, 1888, no earmarks being given. There was no contract between Vignal and Johnson, further than is shown by the foregoing,-no agreement as to how they should hold the cattle, by what title, when they were to be sold, how the proceeds should be delivered, or when or how sales should be made. Vignal never held out Johnson as his partner, to Worsham or any one else, so far as is shown by the above testimony, and there is no proof that he ever did or said anything inducing the belief that Johnson and he were partners in the cattle. We think that only a joint ownership is shown. That is clearly shown, and there the testimony stops. Nothing else is shown which by any of the tests of partnership tends to prove that these men were anything more than joint owners of the cattle. So we conclude that there was not only evidence sufficient to warrant the charge of such ownership, but that there was no evidence of all of partnership. Buzard v. McAnulty, 77 Tex. 443, 14 S. W. 138. There was no agreement to become partners, or any fact showing such an intent. 1 Bates, Partn. §§ 24, 26, 31.

There are quite a number of assignments of error, based upon the assumption that a partnership was shown by the testimony, addressed to the charge of the court defining partnership, and other rulings upon the question of fraud by Worsham and Johnson and efforts by them to defraud Vignal of his interest in the cattle. According to our view of the case, these questions do not arise. They are not in the case under the proof. They are based upon the assumption of partnership, and, as there was no testimony authorizing a finding of the fact of partnership, the error assigned, if it exists, is harmless. A joint ownership only is shown, and, this being true, Johnson had no power to sell Vignal's interest in the cattle. In the absence of some proof tending to show partnership, the court should have instructed the jury that no partnership was shown. Worsham is not shown to have

been misled or deceived by Vignal as to the ownership of the cattle. He knew they belonged to Vignal and Johnson, but knew nothing, as coming from Vigual, that could induce him to believe that it was a partnership ownership. In this view of the case, we are not called on to examine the rulings of the court on the question of partnership presented by appellant's assignments of error, except in the admission of testimony. Vignal was permitted to state in testimony that he was not a partner with Johnson in the cattle, but that the ownership was joint. It is true, if the testimony made the issue of partnership or not, Vignal should not have been allowed to decide the issue by stating that the interest in the cattle was joint, as such a statement would be only his opinion on the question, involving a conclusion of law upon the facts, which the jury alone, under proper instructions, should have been left to decide. But, inasmuch as there was no testimony tending to evidence a partnership, and testimony only showing joint ownership, his opinion would be harmless and immaterial, and we should not reverse the judgment because of such opinion admitted in evidence. The testimony would warrant the conclusion that Johnson sold the cattle to Worsham with the intention to deprive Vignal of his interest in them, and that Worsham knew the fact. At the time of the sale by Johnson to Worsham, Johnson was insolvent, and continued to be so to the time of the trial. Worsham had known Johnson since 1876. Johnson had worked for Worsham & Stevens in the cattle business in 1876 and 1877, was at the time of the trial working for the Worsham Cattle Company, and had been since 1885, and as foreman of the company since 1886. Worsham knew, and he testified that he knew, Johnson was insolvent at the time Johnson sold him the cattle. Johnson soid him the cattle for his nonnegotiable note of date November 8, 1888, payable two years after date, to Johnson & Vignal, for $1.290, bearing 10 per cent. interest from date, which states: "This note is nonnegotiable, and is subject to all offsets that the said Worsham may have or may hereafter acquire against us, or either of us." Vignal did not know Johnson was going to sell the cattle to Worsham. Worsham paid the note to Johnson by his check to him on the bank for $1,447.82, which Johnson collected, no part of which was ever paid or offered to be paid to Vignal. Worsham explains, in his testimony, that he made the note nonnegotiable because he was afraid Vignal would beat him out of the costs of a suit for land in which he (Vignal) and others were parties, in which the latter had filed a disclaimer. Worsham afterwards compromised the suit, and agreed to pay the costs. He took no judgment against Vignal for costs. Johnson explains that he sold the cattle because Vignal was trying to "beat him" out of them, but there is no testimony explaining how or in what manner Vignal was trying to "beat him" out of the cattle,-nothing besides

ber, but such account of sales was destroyed by fire." The testimony is not definite as to the number of the cattle sold and appropriated by Worsham. Johnson sold and delivered to him 117 head, about one-half of which belonged to plaintiff, Vignal. Plaintiff's share of the cattle appropriated by Worsham, at their value at the time he sold them, would, with interest, amount to considerably more than the amount of the verdict. If the 21 head, for which defendant contends if the suit is barred by limitation of two years, be deducted from the 117 head sold to Worsham, plaintiff's half interest in them would be 48 head, which, at the highest price per head estimated by defendant when he sold them, with interest, for only two years before the date of the judgment, at 6 per cent., would amount to about $860, nearly the amount of the judgment, which was for $869.76; and if interest be estimated for three years, the amount would be $906.24 at the date of the judgment. Under the facts, it is impossible to say that the verdict is excessive, or that it awards more than the corrrect amount of damages.

We find that the conversion was certainly complete when Worsham sold the cattle of his co-owner, and appropriated the proceeds to his own use, and that it cannot be certainly ascertained from the testimony that it occurred at an earlier date. None of the assignments of error insisted on by appellant ought to be sustained. The judgment of the lower court is sustained.

SAN ANTONIO & A. P. RY. CO. v. MOHL. (Court of Civil Appeals of Texas. July 1,

1896.)

PRACTICE-DISMISSAL-OBSTRUCTING FLOW of SurFACE WATER-MEASURE OF DAMAGES.

1. In an action commenced against the receivers of a railroad company, an amended petition, alleging the discharge of the receivers, and asking judgment against the company alone, is equivalent to a dismissal as to the receivers.

2. The measure of damages for a permanent injury to land by reason of the construction of a railroad over it in such manner as to obstruct the natural flow of surface water is the difference between its value as it is and its value without the railroad.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Aurelia H. Mohl against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

O. T. Holt, for appellant. F. F. Chew, Sr., for appellee.

WILLIAMS, J. This was an action by appellee for damages caused by the construction of the appellant's road across her land, and its failure to construct sufficient culverts and sluices to permit the surface water to flow as it had formerly done, which caused it to accumulate upon her land at every ordinary

rainfall, and to permanently damage it. The suit was for permanent injury to the value of the land, and originally was brought against receivers of the railway company while they had char; e of the road. But before the trial below an amended petition was filed, alleging the discharge of the receivers, and seeking judgment against appellant alone upon averments sufficient to show its liability. The case was tried between appellant and appellee alone, there being no further reference to the receivers. Judgment was rendered against appellant, from which it brings this appeal.

The first point to be considered is that made by appelant that the judgment is not final, because it does not dispose of the receivers. If this is true, it must result in a dismissal of the appeal. But we think the amended pleading amounted to a discontinuance of the suit as to the receivers, and the court below evidently so treated it. Upon the facts alleged no judgment could have been rendered against them. If they were entitled to judgment for costs, they did not insist on it, and appellant cannot and does not complain of the omission.

"If

The court charged the jury as follows: you believe from the evidence that by reason of the construction and maintenance of the railroad of the defendant company through plaintiff's land it has depreciated in value,that it is worth less than it would be if the railroad were not maintained in its present condition so far as regards draining,-you will in such event find a verdict for the plaintiff at such amount as from the evidence you believe to be the fair difference between what would have been the market value of the land without the railroad maintained and the fair value as the road is." The only objection made to the charge is that the measure of damages is not correctly given, appellant asserting that the proper measure is the "difference in the value of the land immediately before the injury and the value immediately thereafter." The allegations and proof showed that the alleged nuisance was permanent, and had been so treated by the parties. In such cases the whole injury must be compensated in one action, and hence the measure stated by appellant is inapplicable. In the respect complained of the charge was not erroneous. Rosenthal v. Railway Co., 79 Tex. 328, 15 S. W. 268. Affirmed.

HARRIS COUNTY v. CLARKE et al. (Court of Civil Appeals of Texas. July 1, 1896.)

COUNTY OFFICERS-STATIONERY-POWER TO PUR

CHASE.

1. The word "stationery," in Rev. St. 1895, art. 2475, providing that there shall be allowed to certain county officers, at the expense of the county, "such books, stationery, including bail bonds and blank complaints, and office furniture, as may be necessary," may include print

ed blanks other than bail bond and complaint blanks.

2. Under Rev. St. 1895, art. 2475, providing that there shall be allowed to certain county officers such books, stationery, and office furniture as may be necessary for their offices, to be paid for by the county, and that suitable offices shall also be provided by the commissioners' court, the incumbent of any such office may bind the county by a purchase of any such necessary articles, the quantity and price being reasonable.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Clarke & Courts against the county of Harris. Judgment for plaintiffs. Defendant appeals. Affirmed.

John G. Tod and F. L. Schwander, for appellant. Hume & Kleberg, for appellees.

PLEASANTS, J. This is an appeal from a judgment rendered against the appellant upou a verified account for stationery and furniture sold and delivered by appellees to the sheriff of Harris county, and to the clerks of the district court and criminal district court for that county, at the special instance and request, respectively, of said officers, for and on account of the county, for the use of said officers in the discharge of their official duties. The account was duly presented to the commissioners' court of the county for allowance and payment, but payment was refused, and suit was therefore instituted in the district court for the recovery of the price of the goods sold and delivered as aforesaid by appellees, and upon trial of the cause in that court verdict and judgment were rendered for the plaintiff for the sum of $587.25, being $6 less than the sum sued for; and, a new trial being refused it, the county appealed to this court. The defense to the suit is based on two grounds: First, that the officers who purchased the goods were not authorized by law to make the purchase for the county; and, second, that a large portion of the goods consisted, not of necessary stationery for the offices of said sheriff and clerks, but of printed forms, with blanks therein, to be filled by said officers as occasion required, and were intended for the convenience and economy of the officers who purchased them. These objections to the appellees' demand we will consider in the reverse order in which they are stated. Stationery is defined by Webster to mean paper, pens, inks, quills, blank books, etc. From this definition of the word it would be only by a narrow and contracted interpretation of the statute that printed blanks could be denied to the sheriff and clerks of a county for use in the performance of their official duties. And such an interpretation of the statute is not in harmony with the custom which obtains, and which has obtained for years, in the offices of the executive and judicial departments of this state; nor with legislative action in respect to appropriations made for these departments. Besides, it has been expressly determined by a court of great respectability

that the term "stationery" includes within its meaning printed blanks. Knox Co. v. Arms, 22 Ill. 175. We conclude, therefore, that the court did not err, at least to the prejudice of appellant, in declining to adopt its definition of the word "stationery," and to instruct the jury in accordance therewith, unless, as is insisted by appellant, the terms of the statute are such as to forbid any other definition of the word. Article 2475, Rev. St. 1895, provides: "There shall be allowed to county judges, clerks of the district and county courts, sheriffs and county treasurers, such books, stationery, including blank bail bonds and blank complaints, and office furniture as may be necessary for their offices, to be paid for on the order of the commissioners' court, out of the county treasury; and suitable offices shall also be provided by the commissioners' court for said officers, at the expense of the county;" and that "such books and stationery as are necessary in the performance of their duties, shall also be furnished justices of the peace by said commissioners' court." There is nothing in this language, as we conceive, to negative the idea that the term "stationery" may include printed blanks; but, on the contrary, the expression, "stationery, including blank bail bonds and blank complaints," seems to us to assume that the word "stationery" does include printed blanks. If not, then the language would doubtless have been "stationery," and also "blank bail bonds and blank complaints." The purpose of the legislature in these words is not to prohibit the purchase of printed blanks, other than blank bail bonds and blank complaints, but to expressly enjoin the purchase of the latter by the county,-a charge which otherwise would properly fall on the state,-in order, no doubt, that the officers of the county who were charged with the duty of issuing and executing criminal process might be properly equipped for the prompt and accurate performance of their duties. The maxim, "Expressio unius est exclusio alterius," is not applicable to the language of this statute.

The contention by appellee that the officers upon whose orders the stationery was sold and delivered were each without power to bind the county for payment of the goods rests upon the assumption that no contract can be made for the county except by the commissioners' court, or its duly-appointed agent; but this assumption, in our opinion, is itself without foundation in the law. We know of no statute or decision which declares that a contract, to be binding upon a county, must be made with the commissioners' court or its agent. Such is certainly not the rule of law applicable to the officers of corporations other than public, and the rules which define the powers of the officers of corporations generally should apply to the officers of a county, unless other rules are expressly prescribed, or are dictated by public policy. The provision of the statute quoted above

does not direct that the commissioners' court shall purchase the necessary stationery for the use of the sheriff and the clerks of the county, but, after declaring that these officers shall be supplied with such stationery and office furniture as may be necessary for the performance of their respective duties, it simply provides that such purchases shall be paid for upon the order of the commissioners' court out of the county treasury; but in the next clause of the same article the language of the statute is "that the commissioners' court shall provide offices for the sheriff and clerks of the county and treasurer." This difference of language in the same article in reference to stationery to be furnished these officers, and the offices to be provided for them, is significant, and would seem to indicate the legislative intent to be that, as to stationery and office furniture, they might be purchased by the officials themselves, but, as to the places and houses in which they are to discharge their respective duties, they had no discretion, and the commissioners' court alone was authorized to provide these officials with offices. Our construction of the statute is that when, for any cause, the office of county judge, sheriff, treasurer, clerk of the district court, or clerk of the county court is not furnished with necessary stationery and books, or furniture, the incumbent of such office may purchase such necessaries at the cost of the county, and such contract of purchase is binding upon the county, and should be recognized as a valid claim against the county by the commissioners' court, and ordered paid out of the county treasury, unless it is clear that the goods purchased are not such as are allowed the official by the law, or unless the purchase is unreasonable either in the quantity of the goods, or in the prices paid for them. This, we take it, is the only limit upon the power of the incumbent of the office to make the purchase; and the extent of the authority of the commissioners' court in the premises is only to see that the discretion reposed in the official making the purchase has not been abused. From these views of the law, and from the facts of the case, it follows that there was no material error committed by the trial court, in our judgment; and what we have said renders it unnecessary to discuss the remaining assignments of error. The judgment is affirmed.

NOTE BY THE JUDGE. In the opinion delivered in this case there is an omission in the statement of the case of the words "county clerk." The suit was to recover for goods sold to the county clerk, the clerks of the civil and criminal district courts of Harris county, and the sheriff of that county, and the law of the case as announced in the opinion applies equally to sales made to each of the officers. This note is made in explanation of the omission in the opinion, and the clerk of this court will attach the same to the original opinion now of record in his office.

INTERNATIONAL & G. N. R. CO. v.

THOMPSON.

(Court of Civil Appeals of Texas. Sept. 17, 1896.)

PERSONAL INJURY-DAMAGES-PLEADING AND PROOF.

While, under allegations of the complaint that plaintiff was "violently and greatly bruised in and upon her hips, back, and spine, and nerves, and other parts of the body," evidence of impairment of vision is admissible to prove that there had been concussion of the spine, in connection with other evidence of such concussion, and evidence that impairment of vision resulted from such a cause, the impairment of eyesight cannot be considered as an element of damages, not even in connection with the injuries to the spine; it being a special damage, not pleaded.

Appeal from district court, Anderson county; J. R. Burnett, Judge.

Action by R. M. Thompson against the International & Great Northern Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

G. H. Gould, for appellant. Gregg & Gardner, for appellee.

WILLIAMS, J. Appellee recovered judgment for personal injuries received by his wife through alleged negligence of appellant, which caused her to fall to the ground when alighting, as a passenger, from one of appellant's trains. The petition alleged that plaintiff's wife, by the fall, was "violently and greatly bruised in and upon her hips, back, and spine. and nerves, and other parts of her body." Upon the trial, evidence was offered by plaintiff tending to prove concussion of the spine and its consequences upon the lady's system. Among the latter, one of the doctors testified that impairment of vision resulted from such a cause, and, in connection with this, evidence was admitted that Mrs. Thompson's sight had suffered in the way described by the expert. This was admitted as evidence that there had been concussion of the spine, and for that purpose we think it was admissible as a circumstance tending to prove the fact. But the court, in the part of the charge defining the elements upon which plaintiff might recover, after including in them injuries to the spine, directed as follows: "If you find for plaintiff, you will not, in estimating the damage, consider any injuries to Mrs. Thompson's eye. sight or memory, except in connection with and as a part of the injuries to her spine, if you find that her spine was injured, and that her sight and memory were injured thereby." This is assigned as error, and, in our opinion, the assignment is well taken. The rule which allows recovery of general damage without allegations or proof has been so often stated by our supreme court that it is unnecessary to give it here. It admits of compensation only for such consequences as necessarily flow from the injury alleged, upon the theory that such consequences are presumed by the law, and hence need not be alleged. But the law does