stance tending to show that deeds of their purported character were in fact in existence at the date of the record, to be considered by the jury, together with all other evidence, in determining whether or not the Texas Emigration & Land Company had in fact made deeds to Wm. Logan, as asserted by appellants.

In view of another trial, we also add that while we disagree with appellants in the objections made to the foreclosure sale for the taxes of 1898, through which appellees claim, we nevertheless hold that the tender made appellees in redemption of such sale was sufficient under article 5232n, Rev. St. It is undisputed that the tender of a sufficient amount was made within the time required by law, and we cannot think that the mere fact that the tender was made through an agency not known by the purchaser to have any interest in the land could affect the question. The real owner is given the right by the statute to redeem, and we know of no law which required the owner to exhibit his evidences of right at the time of redemption.

In the instance before us appellants' agent in the town of Graham arranged with the bank at that place, by phone, to procure the bank at Albany, Tex., to make the tender, which was refused because the purchasers did not believe or understand that the bank at Albany had any interest in the lands in controversy. No reason appears why, if deemed material, proper inquiry would not have led to full disclosure of the parties appellant in whose interest the tender was really made.

Other questions need not be noticed, but for the error discussed in the exclusion of the testimony the judgment is reversed, and cause remanded for a new trial.

MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH.*

(Court of Civil Appeals of Texas. Jan. 28, 1903.)

SERVANT-INJURIES-NEGLIGENCE-FELLOW SERVANT-EVIDENCE-RULE EX

CLUDING WITNESSES.

1. While in charge of a hand car, and of plaintiff and other hands who were moving the same under his direction and with his assistance, a railroad foreman, with those at his end of the car, quickly and recklessly, and without warning to plaintiff, who was at the other end, lifted their end, and threw the weight of the car on the end where plaintiff was; thereby inflicting the injury complained of. Held to be negligence on the part of the foreman and those assisting him at his end of the car.

2. Where, in an action for personal injuries, all the witnesses were placed under the rule, it was not an abuse of discretion to refuse to relax the rule in favor of defendant's medical experts. whose assistance defendant desired in aiding its counsel to cross-examine one of plaintiff's medical experts.

3. In an action by an employé against a railroad for injuries, it was proper for his counsel, on

*Rehearing denied February 25, 1903, and writ of error denied by supreme court.

cross-examination of certain of defendant's witnesses, to prove by them that they were in defendant's employ, and attended the trial on notice from it, and in the expectation that it would pay their expenses incurred in such attendance, and were not subpoenaed as witnesses, as such facts were proper to be considered in weighing their evidence.

4. In an action by an employé against a railroad for injuries, it was proper for plaintiff's counsel to ask defendant's foreman, on crossexamination, whether or not there was a general rule of the company that employés who violate its rules and are negligent are discharged, and that they have to get out, or do their best as witnesses for the company.

5. A railroad foreman, in charge of a hand car, and of plaintiff and other hands who were moving it under his direction when plaintiff was injured, did not lose his status as foreman or vice principal, and become a fellow servant of plaintiff, by assisting in moving the car.

Appeal from district court, Bell county; John M. Furman, Judge.

Action by Charles S. Smith against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

T. S. Miller and Geo. W. Tyler, for appellant. J. B. McMahon, for appellee.

FISHER, C. J. Charlie Smith, plaintiff below, filed his first amended original petition in the district court of Bell county, Tex.. July 20, 1900, wherein he claimed damages for personal injuries received in lifting a hand car from defendant's track while he was employed as a member of the bridge gang under J. B. Berry foreman; "that, when the car was about to be removed, the said Berry, with the other men, took hold of one side of the car, and ordered plaintiff and another one of the men to get on the opposite side, which order was obeyed, and in this manner undertook to remove said car; that plaintiff and the man lifting with him took hold of said car, and began to lift slowly and carefully, as they were bound to do, on account of the weight of said car, and, while they were so lifting, the said foreman and the men lifting on his side, negligently, recklessly, and without notice to plaintiff and his companion, raised their end of the car to such an elevation that the most of the weight was thrown upon plaintiff," etc. Defendant answered by general denial, and further alleged (1) that plaintiff's injuries were due to his own negligence in undertaking to remove the car as claimed, and in failing to protest to the foreman, or in not desisting from and refusing to further assist in the removal of the car, which negligence contributed to, and was the proximate cause of, the injury; (2) that the injury was caused by the other members of the gang, who were fellow servants with plaintiff; and (3) that plaintiff assumed the ordinary risk connected with his employment, and that it is usual for the bridge gang to ride upon a hand car, and to move it to and from the track as ne

cessity requires, and on the occasion in question it was removed from the track in the ordinary way, and, if there were more men lifting on the side opposite to plaintiff than on his side, the fact was plainly visible and open to him, and he assumed the risk of any danger to himself resulting therefrom. The case was tried before a jury on January 25, 1902, resulting in a verdict and judgment for plaintiff against the defendant for $1,250.

There is evidence in the record which supports the averments of the plaintiff's petition. The evidence shows: That Berry was foreman at the time that the hand car was being removed, and that he was in charge and control of the same, and of the plaintiff and the other hands who were removing the same from the track, and that the same was being removed under his direction-he at the time assisting in the removal-and that he, with the others at his end of the car, quickly and recklessly, and without warning to the plaintiff, lifted and elevated their end of it, and threw the weight on the end where the plaintiff was, thereby causing the injuries alleged in his petition. Such conduct at the time was negligence upon the part of the foreman and those employés that were assisting him at his end of the car in moving the same from the track. That the sudden movement here complained of was at the direction of the foreman, Berry.

It was not reversible error to admit the evidence complained of in appellant's fourth assignment of error. If that testimony could be considered in the nature of admissions by the defendant of its liability, it would be admissible. If it could not be admitted or was not admitted for that purpose, it was harmless and immaterial, and was not calculated to influence the jury in reaching a verdict.

The evidence complained of in the sixteenth assignment of error was admissible. In our opinion, the allegations of the plaintiff's petition were sufficient to admit this testimony.

It is contended in the seventh assignment of error that Dr. Hodges, one of the surgeons in charge of the hospital at Houston, should have been permitted to remain in attendance during the examination of the witnesses. All the witnesses were placed under the rule. It is claimed by the appellant that Dr. Hodges' assistance was necessary, as a medical expert, in aiding the defendant's counsel in the cross-examination of Dr. Flewellen, one of the plaintiff's witnesses. We see no reason why the rule should be relaxed in favor of a medical expert, more than any other witness whose assistance might be valuable to counsel in aiding him in the crossexamination of the witnesses of his opponent. There was no abuse of discretion in the ruling of the court upon this subject.

It was proper for plaintiff, on cross-examination of defendant's witnesses Nelson, Berry, and Hodges, to prove by each of these

witnesses that they were in the employ of the defendant, and that they were not subpoenaed as witnesses, and that they attended the trial on notice from defendant's officers or attorneys, and expected the defendant to pay their expenses for the time spent in attendance upon the trial. These were facts proper to be considered by the jury in weighing the evidence of these witnesses. It was also proper to ask the witness Berry, on cross-examination, whether or not there was a general rule of the defendant company that employés who violate the rules and are negligent are discharged, and that they have to get out, or do their best as witnesses for the company. The witness, in answering this question, stated that an employé is not discharged every time, and that they are not discharged unless negligence is shown. The objection urged to the question, and the evidence in answer to it, is that it was immaterial and irrelevant, and calculated to prejudice the defendant's case in the minds of the jury, and that there was no proof of such rule or custom. The question asked was proper. The plaintiff could not offer evidence of such a rule until he proved that such a rule existed, and, if the witness knew that fact, he could testify that there was a rule, and what that rule was. It is not shown here that the rule was in writing, nor is complaint made that the plaintiff has not offered the best evidence upon that subject. If the witness knew that there was such a rule as inquired about, he could testify to that fact.

There was no error in refusing any of the special charges requested by defendant, as all of the issues that were proper to be submitted were covered by the charge of the court.

The charge complained of in the seventeenth and eighteenth assignments of error was proper. It is contended that Berry, the foreman, when he assisted in removing the car from the track at the time that the plaintiff was injured, occupied the position of a fellow servant, and, by reason of such assistance, lost his status of foreman or vice principal, for whose negligence the railway company would not be liable, as it would be one of the risks assumed by the plaintiff. This view of the question by appellant is not tenable. St. Louis Southwestern Railway Co. v. Smith, 70 S. W. 789, 5 Tex. Ct. Rep. 816.

We find no error in the record, and the judgment is affirmed. Affirmed.

GULF, C. & S. F. RY. CO. v. FORT GRAIN

CO.

(Court of Civil Appeals of Texas. Feb. 18, 1903.) CARRIERS-RATES-INTERSTATE OR DOMESTIC

SHIPMENT-OVERCHARGES-BUR-
DEN OF PROOF.

1. If the final destination of goods shipped from a point without the state of Texas is a point

within that state, the shipment is an interstate one, and not subject to the commission rates of Texas, though not made on a through bill of lading.

2. The fact that plaintiff acquired title to the shipment from the original shipper after it had reached a point in Texas, but before it reached its final destination, would not make the shipment a domestic one.

3. In a suit against a carrier to recover the penalty for overcharges consisting in the excess of the interstate rate over the commission rates of Texas, the burden of proving that the shipment was a domestic shipment was on the plaintiff.

Appeal from district court, McLennan county; T. P. Stone, Special Judge.

Action by the Fort Grain Company against the Gulf, Colorado & Santa Fé Railway Company to recover the penalty imposed by statute for overcharges. Judgment for plaintiff, and defendant appeals. Reversed.

The theory on which plaintiff based its right of action was that the shipment in question was a domestic one, and that defendant, by charging the interstate rate, which was greater than the domestic rate, had subjected itself to the penalty.

Prendergast & Sanford and J. W. Terry, for appellant. Davis & Cocke, for appellee.

FISHER, C. J. The trial court instructed the jury as follows: "By "interstate shipment' is meant freight that is shipped from one state through and into another on a bill of lading issued by the initial carrier to be carried through from the terminal point to the point of destination; and if you find that the bill of lading was issued to Connor Bros., and it was the intention of the parties that this shipment of freight was to be delivered at Copperas Cove and San Angelo, Texas, then it would be an interstate shipment under the law, and you will find as instructed above." This charge is complained of in appellant's ninth assignment of error. This definition of an interstate shipment is not accurate. The shipment may be interstate, although transported by virtue of numerous bills of lading. The original bill of lading upon which the goods were shipped mentioned Texarkana, Ark., as the terminal point. There is evidence to the effect that the goods were delivered at Texarkana, Tex., and were there rebilled, and a new bill of lading issued, upon which the property was finally transported to its destination. If the purpose and intention was, when the goods were shipped from St. Louis, that their final destination was Copperas Cove and San Angelo, it would be an interstate shipment, notwithstanding the transportation was not upon a through bill of lading. Houston Navigation Co. v. Ins. Co., 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713, 59 Am. St. Rep. 17.

The twelfth assignment of error complains of the following charge: "You are charged, if you believe from the evidence that the Fort Grain Company only acquired title to the several shipments of corn shown in the evidence, after the same arrived at Texarkana, Texas, that they did not own said corn at any point outside the state of Texas, then the shipment made by it from Texarkana, Texas, to any point in the state of Texas would be such a shipment as would be subject to the rates fixed by the railway commission of Texas. And if you believe from the evidence that the defendant charged and collected, demanded or received, from plaintiffs, as freight charges, any greater rate, charge, or compensation than that fixed and established by the railway commission for the transportation of such freight, then you will find for plaintiffs, as damages, the amount of such overcharge, if any." This charge was erroneous. Acquiring title to the shipments of corn after their arrival at Texarkana was not the sole test by which to determine whether the shipments were or not interstate. If, when the corn was started, or before it reached Texarkana, it was the purpose and intention that the corn in question should be transported to its final destination-that is, Copperas Cove and San Angelo-the transportation would be interstate, and not domestic, although the plaintiff may not have acquired title until after the corn reached Texarkana, Texas.

The fourteenth assignment of error complains of the charge of the court to the effect that the burden of proof was on the defendant to establish by a preponderance of the testimony that the shipment in question was interstate. The plaintiffs, in their petition, sought to recover from the defendant on the ground that the shipment in question was domestic, and that by reason of the appellant demanding and receiving from the plaintiff the interstate rate, which was greater than the commission rates of Texas, it subjected itself to the penalties prescribed by the statute. In other words, plaintiff's case was predicated upon the proposition that the shipment in question was not interstate, but a domestic shipment from Texarkana, Tex., to Copperas Cove and San Angelo, Tex. Evidence of these facts was a part of the plaintiff's case, and the burden of proof was upon the plaintiff to establish the facts as pleaded. Therefore the charge complained of was erroneous.

We have carefully examined all of the remaining assignments of error, and reach the conclusion that they are not well taken. For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

LOW v. MOORE.

(Court of Civil Appeals of Texas. Feb. 18,

1903.)

FACTORS-WRONGFUL SALES-RECOVERY OF PROPERTY PAYMENT OF VALUE - PRECEDENT DEBT-APPEAL-FINAL JUDGMENT.

1. Where plaintiff's agent, having possession of buggies for sale, sold one to defendant for such agent's precedent debt, without authority, defendant was not a purchaser for value, and plaintiff was therefore entitled to recover the value of the buggy, and damages for its detention.

2. Where, in an action by a principal to recover property wrongfully sold by his agent, the evidence as to value was conflicting, and the record did not show the amount to which plaintiff was entitled for the detention of the property, the appellate court, ou reversing a judgment for defendant, could not render judgment absolute for plaintiff.

Appeal from McCulloch county court; Joe A. Adkins, Judge.

Action by W. G. Low against S. P. Moore. From a judgment in favor of defendant, plaintiff appeals. Reversed.

T. C. Wilkinson and Shropshire & Hughes, for appellant. W. E. Adkins and W. McShan, for appellee.

STREETMAN, J. Appellant brought this suit in the justice's court for the conversion of a buggy, and sought judgment either for the possession of the buggy, and damages for its detention, or for its value, with interest. Upon appeal to the county court, a jury trial was had, and from a verdict and judgment in favor of the defendant this appeal is prosecuted.

The following facts were shown: Appel. lant was living at Brownwood, Texas, and engaged one W. C. Hildebrand, who lived at Brady, Texas, to act as his agent in the sale of some buggies. The following agreement was executed: "Brownwood, Texas, May 15th, 1902. I, W. G. Low, this day agree to furnish W. C. Hildebrand a few jobs of spring work and wagons as long as satisfactory, with the express understanding that he sell them at Brady, Texas, and gives the said W. G. Low a note with lien on said vehicles with 10% interest and approved by W. D. Carothers, Brady, Texas, payable in cash or note not later than October 1, 1902, with 10% add to wagon sale above invoice price; 20% above invoice price of spring vehicles. The above 10% and 20% to be applied to the credit of W. C. Hildebrand when collected by said W. G. Low. [Signed] W. C. Hildebrand." Under this contract, Hildebrand took the buggy in question to Brady, Texas, and left it in the livery stable of appellee. Hildebrand owed appellee about $160 on account; and appellee, not knowing of the agency, but supposing Hildebrand to be the owner of the buggy, bought it from him at an agreed price of $87.50, and paid for it by crediting Hildebrand's account with that amount, to which arrangement Hildebrand agreed. Appellant, Low, ascertained these

facts, and demanded possession of the buggy, and, upon being refused, brought this suit to recover it. The only pleadings of the defendant were a general denial, and a special plea alleging a purchase for value in good faith from Hildebrand, and without knowledge of any title or claim on the part of appellant.

The court charged the jury as follows:

"That where a principal intrusts the possession of his goods with an agent, and a person deals with an agent as the principal, without knowledge of the agency, he may set off any claim he has against the agent before he is undeceived, in answer to the demand of the principal; and in this case, if you believe from the evidence that W. C. Hildebrand was the agent of the plaintiff, W. G. Low, and that said Low intrusted his goods with said Hildebrand, and that the defendant, S. P. Moore, purchased the buggy involved in this suit from said W. C. Hildebrand, not knowing that he, the said Hildebrand, was the agent of this plaintiff, then. the defendant, Moore, would have a right to offset any claim he had against said Hildebrand in payment of said buggy.

"You are instructed that, in order to constitute a contract, it is necessary that the minds of the two parties must come together, and agree upon all the terms and considerations of the contract. A principal is liable for the acts of his agent done within the scope of his employment. An agent, notwithstanding private instructions, may, within the limit of his agency, bind his principal, unless the person or party dealing with the agent knew of such instructions. If either party must suffer from the acts of an agent, it must be the party whose agent he is. If you believe from the evidence that W. C. Hildebrand, acting as agent for plaintiff, W. G. Low, sold and delivered to defendant, S. P. Moore, the buggy in controversy, and that said defendant, Moore, knew at the time of such sale that W. C. Hildebrand was the agent of W. G. Low, and that said buggy was the property of W. G. Low, the plaintiff herein, then in that event you will find for the plaintiff the value of same, and the reasonable hire of same, per day, from the 19th day of June, A. D. 1902."

Appellant's first assignment of error assails that portion of the charge which authorizes the jury to offset plaintiff's claim with the indebtedness owing by the agent to the defendant, and this assignment is sustained. The propositions of law stated in the charge are correct, and are supported by abundant authority in cases where they are applicable, but they do not apply to the facts of this case. If an agent enters into a contract as though made for himself, and the existence of a principal is not disclosed, the principal may generally enforce the contract; and if he does so, and assumes the benefits of the contract, if the agent has been invested with the indicia of ownership, the principal must

take the burdens as well as the benefits of the contract. He must, in such case, take the contract subject to all the equities existing between the third party and the agent. These principles, however, are subject to the further rule that the principal may recover his own property, or its value, from third persons, when it has been transferred or disposed of by an agent contrary to his instructions or duty; and, to defeat the operation of this rule, the purchaser must show two things: (1) That the principal has invested the agent with the indicia of title to the property, or authority to make such disposition; and (2) that he bought the property in good faith, without notice, and paid a valuable consideration. It has been held in some cases that the mere possession of property, by whatever means obtained, is not a sufficient indication of ownership to create any rights in favor of a third person purchasing the property; and it is suggested that the principal or owner must do something more than merely deliver the possession of the property to the agent, before he can be prejudiced by an unauthorized sale by the agent. The facts in this case, however, do go a step further than the mere delivery of possession to the agent, and it might possibly be said that the agent was invested with the indicia of ownership. But the second requirement is not met. The appellee in this case did not pay anything which is, in law, deemed of value, when he purchased the buggy. As said in Barnard v. Campbell, 55 N. Y. 456, 14 Am. Rep. 289, the purchaser "must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real." Α purchaser who simply credits the price upon a pre-existing indebtedness does not part with anything of value. Overstreet v. Manning, 67 Tex. 657, 4 S. W. 248; McKamey v. Thorp, 61 Tex. 648. Hence the rule has been established that "where an agent, as such, having a general authority to sell, transfers his principal's goods to a third party in payment of his [the agent's] debt, the principal may, as a general rule, recover from the third party the goods so transferred, or the value thereof." Am. & Eng. Ency. Law, (2d Ed.) vol. 1, p. 1174. Many authorities are cited in support of this rule-among others, the case of Warner v. Martin (by the Supreme Court of the United States) 11 How. 224, 13 L. Ed. 667, in which it is said: "A factor or agent who has power to sell the produce of his principal has no power to affect the property by tortiously pledging it as a security or satisfaction for a debt of his own, and it is of no consequence that the pledgee is ignorant of the factor's not being the owner. When goods are so pledged or disposed of, the principal may recover them back by an action of trover against the pawnee, without tendering to the factor what

may be due to him, and without any tender to the pawnee for which the goods were pledged, or without any demand for such goods; and it is no excuse that the pawnee was wholly ignorant that he who held the goods held them as a mere agent or factor." So in the case of Rodick v. Coburn, 68 Me. 170, it is said: "If the owner of an article of personal property delivers it to another to sell, the latter has no right to deliver it to his creditor in payment of his own preexisting debt; and, if he does so, the owner may maintain trover against the creditor without a previous demand." Many other cases are to the same effect. We are therefore of the opinion that, under the evidence in this case, the court should have instructed the jury to find for the plaintiff, leaving them only to ascertain the value of the buggy, and the damages to which plaintiff was entitled for its detention.

We are asked not only to reverse this case, but also to render judgment for appellant, but the evidence is not in such condition as to authorize us to do so. The plaintiff testified that the buggy was worth in the market from $110 to $120. It was sold, however, by Hildebrand, for $87.50, and there was evidence to show that the cost price of the buggy was only $82.50. We are also unable, from the record, to say precisely the amount to which plaintiff would be entitled for the detention of the buggy; the only evidence being that of the defendant, who testified that he hired out buggies at $1 a day.

What we have said above will sufficiently indicate our views, without passing separately upon each assignment of error.

Because of the errors pointed out in the charge of the court, the judgment is reversed, and the cause remanded. Reversed and remanded.

FERGUSON v. SLATER, MCMAHON &

CO.

(Court of Civil Appeals of Texas. Feb. 28, 1903.)

GUARDIAN AND

WARD ACTION AGAINST GUARDIAN-RECONVENTION-APPEAL RIGHT TO ALLEGE ERROR.

1. Where defendant, sued both in his individual and representative capacities on a coutract for threshing grain grown on land which he held as guardian for certain minors, pleaded damages for plaintiff's breach of the contract in his capacity as guardian, and there was no recovery against him in such capacity, he could not complain on appeal that the court erred in disposing of his plea in reconvention.

Appeal from Collins county court; J. H. Faulkner, Judge.

Action by Slater, McMahon & Co. against J. H. Ferguson. From a judgment in favor Affirmed. of plaintiffs, defendant appeals.

H. C. Ferguson, J. M. Pearson, and Abernathy & Beverly, for appellant. Abernathy & Mangum, for appellees.