nized him in the capacity in which he appeared, and permitted him to prosecute the suit, he became a proper representative of the minor, and his acts done in that relation, within the limits of his authority, were binding on his ward. Cannon v. Hemphill, 7 Tex. 184; Railway Co. v. Styron, 66 Tex. 421, 1 S. W. 161. The court in which the suit was filed had jurisdiction of the parties and of the matters involved. The action of the court in approving the agreement for judgment was presumably taken after the necessary investigation. The court was not required to hear evidence, and the judgment was not defective because it failed to recite that evidence was heard. The judgment was, on its face, authorized, and binding, and conclusive of the rights of the minor. We think, however, that, if the judgment was against the interest of the minor, and the facts which made it so were not disclosed to the court, and the court was thereby induced to approve the agreement for judgment, the minor would be entitled, as between the parties to the judgment, to have the same set aside. Schneider v. Sellers (Tex. Civ. App.) 61 S. W. 541. In Cannon v. Hemphill, supra, the court said: "It is true that, if the next friend does not lay his case properly before the court, by collusion, neglect, or mistake, a new bill may be brought in behalf of the infant." So, if the facts established by the appellee bring his case within the rule stated, he has shown himself entitled to a decree sustaining his bill of review against Davenport & Son. It appears from the record before us that the judgment in question was entered without any of the facts, except those disclosed by the agreement itself, being made known to the court. The agreement provided for judgment in favor of Davenport & Son for $209.25, and for the foreclosure of a lien, which, it was declared, existed against the land in controversy to secure said debt.

As

a matter of fact, the pleadings of Davenport & Son set up no claim of debt or lien. The only theory on which such claim could have been based was that Davenport & Son were entitled to have repaid to them the amount of their bid at the execution sale, with legal interest, before the minor could have judgment for the recovery of the land. As the sale appears to have been void, and as Davenport & Son never obtained possession under their purchase, it would seem that there was no legal foundation for any such claim. But, even if the minor was bound to reimburse them for the sum paid on their bid, and the same constituted a lien on the said lands, still the agreement was unjust to the minor, since it charged him with an obligation to pay an amount considerably in excess of such sum. The minor had no means of paying the sum adjudged against him, and no prospect of obtaining the means of doing so before the day of sale, and the obvious and inevitable effect of the judgment

was to expose his land to sacrifice. The land was worth several times the amount of the lien fixed upon it by the judgment, but the lien was foreclosed against the entire tract, and no provision made for securing means to satisfy the lien. The agreement was manifestly improvident, and did not secure to the infant his legal rights. We are of opinion, therefore, that the trial court did not err in holding that, as between the parties to the said judgment, the minor plaintiff therein was entitled to have the same set aside.

As the judgment was not void, but merely voidable, the plaintiff in error, Day, must be held to be an innocent purchaser, unless at the time he bought he had notice of the facts which rendered the judgment voidable. The jury found, in response to a special issue submitted by the court, that Day had notice of the claim of Johnson to the land, and of the fact that the judge presiding when the judgment was entered did not inquire into the terms of the agreement. We are of opinion that notice of such facts did not, as a matter of law, amount to notice of the grounds upon which Johnson was entitled to have the judgment set aside. It may have been sufficient to require further inquiry on his part as to the existence of such grounds; but if such inquiry, if pursued with proper diligence, would not have led to a knowledge of the essential facts, it would not constitute the necessary notice. Day was justified in relying on the conclusive effect of the judgment, in the absence of notice of the very facts which made it voidable. Because the findings of the jury were not sufficient to show that he had such notice, the judgment against him was not warranted.

The judgment sought to be set aside provided that "defendants, Davenport & Son, do have and recover of and from plaintiff, Foster H. Johnson, and his next friend, John H. King, the sum of two hundred and nine dollars and twenty-five cents," while the order of sale described the judgment as being against Johnson alone. The trial court assumed that there was a variance between the order of sale and the judgment, and that the same constituted an irregularity, and submitted to the jury the issue whether such irregularity was calculated to affect the price the land brought at the sale. The question was answered in the affirmative, as was the further question whether Day had notice of the fact. We are of opinion that the trial court did not properly construe the judgment. The agreement for judgment was inserted in full in the judgment, and shows conclusively that King was suing as next friend, and that no personal judgment against him was contemplated. The judgment, considered as a whole, shows that it was intended only to bind the minor and his property, and that King was made a party to the judgment solely in his representative capacity. The variance between the judgment and the order

of sale constituted no such irregularity as would, when coupled with the inadequate selling price, be sufficient grounds for setting aside the sale.

The judgment is reversed, and the cause remanded.

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

(Court of Civil Appeals of Texas. Jan. 31, 1903.)

CARRIERS-INJURY TO PASSENGER ALIGHTING INSTRUCTION.

1. A charge, in an action for injury to a passenger while alighting from a car, to find for plaintiff if defendant was guilty of negligence in failing (if it did) to provide a stool or some other means to enable plaintiff to alight in safety, and if the jury further find that such negligence of defendant (if it was negligent in any of these respects) was the proximate cause of plaintiff's injury, is not on the weight of evidence, as assuming that failure to provide a stool would constitute negligence.

2. Whether failure of a carrier to provide a stool for passengers in getting on and off trains is negligence is a question for the jury. Appeal from district court, Rockwall county; J. E. Dillard, Judge.

Action by Mary E. Sherrill against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

T. S. Miller and W. C. Jones, for appellant. W. H. Allen, for appellee.

TEMPLETON, J. This suit was brought by Mrs. Mary E. Sherrill against the Missouri, Kansas & Texas Railway Company of Texas to recover damages on account of personal injuries received while in the act of alighting from one of the company's passenger trains. On a jury trial she obtained judgment for $5,000, and this appeal is prosecuted from such judgment.

It was shown on the trial that appellee was a passenger on one of appellant's trains, en route from Dallas to Royce; that the train reached Royce in the nighttime; that there was no depot building at Royce, and no landing place provided for passengers, the depot building having been theretofore destroyed by fire; that, when the train stopped at the station, appellee went out of the car in which she was riding, and down the steps of the car; that, with the assistance of one of the trainmen, she attempted to alight, and fell and was injured; that it was about 22 inches from the bottom step of the car to the ground; that no stool was provided for passengers to step off upon; that there were no lights about the landing place, except the lantern of the trainman, which imperfectly lighted up the premises.

Complaint is made of a clause in the charge of the court which reads thus: "And it is the further duty of the railway com

*Rehearing denied February 28, 1903, and writ of error denied by supreme court.

pany to provide a stool or some other means to enable a passenger to step from the lower step of its car to the ground, when it is necessary for them to do so for the safety of the passenger." Complaint is also made of the paragraph of the charge wherein the rule just stated is applied to the facts, and the jury instructed that "if the defendant company was guilty of negligence in failing (if it did) to provide a stool or some other means to enable plaintiff to alight in safety from its car, and if they further find and believe that such negligence on the part of the defendant company (if it was negligent in any of these respects) was the proximate cause of plaintiff's injuries (if she was injured), then it would be the duty

of the jury to find for the plaintiff." It is urged against these charges that the same are upon the weight of the evidence, in that it is assumed therein that the failure to provide a stool would constitute negligence. The language of the charges confutes the criticism. By the preliminary charge it is made the duty of the company to provide a stool or some other means of assisting the descent of passengers only when it is necessary to do so in order to secure the safety of the passengers. In the charge applying the law to the facts, the question as to whether the failure to provide such means amounted to negligence on the occasion of the accident was pointedly left to the decision of the jury. It is further objected that the charge lays too much stress upon the issue, and presents the same so prominently as to indicate an opinion of the court thereon adverse to appellant. Save in the connection above set out, we find in the charge only one reference to the issue, and that in the paragraph wherein the defendant's side of the question was submitted to the jury. The matter does not appear to have been mentioned in the charge more frequently than necessary, and certainly was not presented in such manner as was calculated to unduly impress the jury with the importance of the issue.

Appellant complains of the action of the court in refusing to give a special charge which reads as follows: "It is not negligence in itself for a railway company to fail to provide a stool for passengers to get on and off its trains." It is too clear for controversy that the question is one of fact, which must be left to the determination of the jury. The requested charge was an invasion of the province of the jury, and was properly refused.

It is insisted that the verdict is not sustained by the evidence, and that it is excessive in amount. That the plaintiff was injured as alleged is abundantly established by affirmative testimony. That her injuries were of a serious and permanent character is shown by direct and positive evidence. If the witnesses for the plaintiff are worthy of belief, her case has been fully made out.

The question of their credibility has been settled by the jury, and the finding against defendant is conclusive.

The judgment is affirmed.

ST. LOUIS & S. F. RY. CO. v. TERRELL. (Court of Civil Appeals of Texas. Feb. 7, 1903.)

CARRIERS-LIABILITY AS TO BAGGAGE.

1. Where a passenger's trunk is placed on the platform on the arrival of the train at 3 a. m., and, not being called for, is placed in the baggage room, whence it is stolen during the night--he not calling for it till late the next day-the carrier's liability is not that of a carrier, but only of a warehouseman.

Appeal from Lamar county court; Wm: Hodges, Judge.

Action by Jeff Terrell against the St. Louis & San Francisco Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

H. D. McDonald, Edgar Wright, and L. F. Parker, for appellant. Moore, Park & Birmingham, for appellee.

BOOKHOUT, J. This is a suit for $182.50 for the loss of a trunk and its contents. delivered to defendant on the 29th day of September, 1901, for transportation from Arthur City, Tex., to Paris, Tex. The suit originated in the justice court. It was appealed to the county court, and therein tried before a jury on the 11th day of March, 1902; a verdict being rendered in favor of the plaintiff for $182.50. Motion for new trial was overruled, notice of appeal given, errors assigned, and appeal perfected in due time.

Plaintiff and wife were changing their place of residence from Arthur City to Paris -a distance of 18 miles. Plaintiff told the agent of appellant at Arthur City that he was going to Paris, and would have two trunks to go along; that he had not made arrangements for accommodations at Paris, and did not want his trunks to reach Paris until Monday, September 30th, and asked him if he could hold the trunks, and send them to Paris on Monday, and that himself and wife would go to Paris Sunday, the 29th of September. The agent agreed to the request. Plaintiff and wife purchased tickets, and received checks for the two trunks. Plaintiff and wife reached Paris on the 29th, went to relatives, and finally secured rooms at the Buckner House. The trunks reached Paris about 9 o'clock a. m. Monday, September 30th. They were unloaded on defendant's platform, ready for delivery. Not being called for, they were placed in defendant's baggage room. On the following day, October 1st, about 5 o'clock p. m., the agent of the plaintiff presented the checks and demanded the trunks. One was found and delivered,

1. See Carriers, vol. 9, Cent. Dig. §§ 1542, 1543.

but the other could not be found. There is some evidence tending to show that the baggage room was burglarized the previous night, and the trunk stolen. It was to recover the value of the lost trunk and its contents that this suit was instituted.

One of the contentions of appellant company on the trial was that it performed its contract of carriage, by transporting the trunks to their destination, and there placing the same on its platform, ready for delivery, and, if liable at all, it was as warehouseman, and not as a public carrier. It sought to have this contention passed upon by the jury, by asking a special charge reading as follows: "If you believe from the evidence that plaintiff's trunk and its contents reached Paris, its destination, and that said trunk and its contents was on defendant's platform at Paris, and ready for delivery, after the arrival of defendant's train, you are instructed that it was plaintiff's duty to obtain possession of said trunk and contents within a reasonable time after its arrival, and that a reasonable time in which to obtain possession of said trunk and contents was immediately after the arrival of defendant's train, and while said trunk was on defendant's platform and ready for delivery; and if you find from the evidence that plaintiff failed to demand possession of said trunk and contents within a reasonable time, as it is above defined, and that said trunk and contents was stored in an ordinarily safe department or room of defendant, and that defendant exercised such care of said trunk as an ordinarily prudent person would have exercised under similar circumstances, then you are instructed that defendant would not be liable to plaintiff for the loss, destruction, or failure to deliver said trunk and its contents to plaintiff." This charge was refused by the court. The rule approved by the Supreme Court in reference to the baggage of a passenger is thus stated: "It is the duty of a railway company, in regard to the baggage of a passenger which has reached its destination, to have the baggage ready for delivery upon the platform at the usual place of delivery until the owner, in the exercise of due diligence, can call for and receive it; and it is the owner's duty to call for and remove it within a reasonable time. If he does not so call for and receive it, it is the company's duty to put it into their baggage room and keep it for him, being liable only as warehousemen; and the reasonable time within which the owner must call for it is directly upon its arrival, making reasonable allowance for delay caused by crowded state of depot at the time; and the lateness of the hour makes no difference, if the baggage be put upon the platform." Railway Co. v. Smith, 81 Tex. 485, 17 S. W. 133. The requested charge, tested by the above rule, announced a correct principle of law, and was applicable to the case as made, and its refusal was error. The

trunk was transported by defendant company to its destination, and placed upon its platform for delivery, 32 hours before plaintiff sent for it. There is no contention that plaintiff was delayed in receiving the trunk by the crowded condition of defendant's depot. No satisfactory excuse is given by plaintiff for his delay in sending for the trunk. Under the undisputed facts, the company was not liable to the plaintiff on its contract of carriage, and the court should only have submitted the liability of the company as warehouseman. Under this holding, the other questions presented by appellant become immaterial in this case. If the company is liable as warehouseman, it does not matter whether or not the contents of the trunk came within the meaning of "baggage."

For the error indicated, the judgment will be reversed and the cause remanded.

ETNA INS. CO. v. EASTMAN.* (Court of Civil Appeals of Texas. Feb. 7, 1903.)

APPEAL-VERDICT-CONFLICTING EVIDENCEPOWER OF APPELLATE COURTACTION ON POLICY.

1. An appellate court has the power to set aside a verdict, even though there is evidence in its support, where it is of such a character as to convince it that injustice has been done. 2. In an action on a fire policy, providing against additional insurance, plaintiff testified that after he procured the additional insurance he notified defendant's agent. On a former trial he had testified that he had had no conversation with the agent after obtaining the additional insurance and before the fire, and his explanation of the contradictory statements was unsatisfactory. He had admitted to a third party after the fire that he had not notified the agent. The agent denied having received notice. No indorsement of the additional insurance appeared on the policy as required. Held, that a verdict for plaintiff would be set aside.

Appeal from district court, Hunt county; H. C. Connor, Judge.

Action by H. P. Eastman against the Ætna Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

F. M. Etheridge, for appellant. Looney & Clark, for appellee.

RAINEY, C. J. This is a suit to recover on a fire insurance policy for loss by fire. Judgment was rendered for plaintiff, and defendant appealed.

The policy provided against additional insurance, and this provision was violated by plaintiff. This violation is sought to be avoided by plaintiff on the ground that he notified one Magrill, defendant's agent, at the time, that he had procured such additional

*Rehearing denied February 28, 1903.

insurance, and Magrill assented thereto. The sole issue presented on this appeal is whether or not such notification was given, appellant contending that the evidence is insufficient to support the verdict and judgment. The appellate courts of this state are reluctant to disturb a verdict where there is any evidence to support it, but they have the power and it is their duty to do so where the evidence is of such a character as to convince them that an injustice has been done. This is a case wherein we feel justified in exercising that power. The great preponderance of the evidence is against the contention of plaintiff that he notified Magrill that he had procured additional insurance on the property burned. Plaintiff, it is true, testified that he notified Magrill of taking out additional insurance after and on the day it was procured from one Henderson, the agent of another company. But on a former trial he testified that he had no conversation with Magrill after procuring said additional insurance and before the fire. He attempted on the last trial to explain this statement, but, to our minds, the explanation is far from satisfactory. He also, in effect, stated to Henderson just after the fire that he had not notified Magrill of procuring said additional insurance, and this he does not deny, but virtually admits same. Magrill denies emphatically that plaintiff had notified him. The policy sued on required an indorsement thereon if additional insurance was taken out. There was no such indorsement on the policy. This requirement can be waived, but the fact that there was no such indorsement is a circumstance of some consideration. There were other slight circumstances tending to depreciate plaintiff's testimony, but we deem it unnecessary to enter further into details. Plaintiff depends solely upon his own testimony as a basis for recovery. He is not corroborated by a single witness or a single circumstance. His statements are contradictory, which, taken with all the facts and circumstances of this case, renders his testimony too unreliable to form a sufficient basis for a verdict. The language of Judge Collard in Easton v. Dudley, 78 Tex. 236, 14 S. W. 583, is applicable here, viz.: "The evidence is no guide to the truth. Had the contradictory statements been made by two witnesses, one contradicting the other, the rule that there exists evidence to support the finding of the court would apply; but these statements are made by the same witness, which makes his testimony at least of little value-not enough to justify a reliable conclusion." Ry. Co. v. Somers, 78 Tex. 441, 14 S. W. 779; Cherry v. Butler (Tex. App.) 17 S. W. 1090.

The trial court erred in not granting a new trial, and the judgment, for the reasons stated, is reversed, and the cause remanded. Reversed and remanded.

1. Where notice was served on a nonresident, and, on the convening of court, plaintiff withdrew proof of service because not made before a proper officer, and some time thereafter filed an amended affidavit, it was not error to refuse to enter judgment by default for failure to answer four days after the filing of the amended proof of service, and allow such defendant until the next term to answer.

2. Plaintiff cannot complain that he was denied judgment by default, when the trial, subsequently had, demonstrated that he was not entitled to recover.

3. Rev. St. art. 1224, provides that service on one partner shall authorize judgment against the firm and the partner served; and article 1346 declares that where the citation has been served on some, but not on all, of the partners, judgment may be rendered against the firm and the partners actually served. Held that, where all the individual members of the firm answered, no judgment could be rendered against the firm by default, though the answers did not specifically appear to be for the firm's benefit.

4. Where a broker was only entitled to commissions in the event a sale of the land was actually consummated, and failure to consummate the sale was not due to the fault of his principals, he could not recover commissions.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by B. D. Owen against Kuhn, Loeb & Co. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Eugene Williams, for appellant. Leo. N. Levi and Clark & Bolinger, for appellees.

STREETMAN, J. Appellant brought this suit for commissions alleged to be due him on the sale for appellees of 246,000 acres of land in Pecos county, Tex. The trial was before the court without a jury. Judgment was for defendants. There are no findings of fact in the record, and we do not deem it necessary to make specific findings. The evidence being almost entirely documentary, and there being no conflict in the testimony, we simply refer to the entire statement of facts in the record, and shall only specifically refer to so much of the record as may be necessary to explain our views of the case.

Plaintiff sued two partnerships, described as the old and the new firms of Kuhn, Loeb & Co., and also the individual members of said firm. All the defendants were nonresidents of the state, and an original attachment was sued out and levied upon lands of the defendants in Texas. One of the defendants was Solomon Loeb. On September 26, 1901, a notice was served upon him as provided for nonresident defendants, but the affidavit required to show service was not made before a proper officer. Court met on

*Rehearing denied March 4, 1903, and writ of error denied by supreme court.

4. See Brokers, vol. 8, Cent. Dig. §§ 81, 94.

October 7, 1901, and about that time plaintiff withdrew the notice, and had the affidavit made before an officer named in the statute, and the notice thus amended was returned and filed in court December 9, 1901. December 13, 1901, this defendant having failed to answer, plaintiff asked for judgment by default; but the court refused to render such judgment, and allowed said defendant until the next term to answer. And at the next term said defendant did answer, and, upon a trial afterwards on the merits, plaintiff failed to recover judgment.

We think there was no error, under the circumstances, in refusing to render judg ment by default, and, further, if there had been error, that plaintiff ought not to be heard to complain that he was denied a judgment by default, when the subsequent trial demonstrated that he was not entitled to re

cover.

Service was also had upon certain defendants who were members of the old and new firms of Kuhn, Loeb & Co., and each of the defendants who were served filed answers in the case, but they did not specifically answer for the firms. Plaintiff thereupon requested the court to render judgment by default against the firms, and the refusal of the court to award such judgment is assigned as error. Our Revised Statutes contain the following provisions:

"Art. 1224. In suits against partners, the citation may be served upon one of the firm, and such service shall be sufficient to authorize a judginent against the firm and against the partner actually served."

"Art. 1346. Where the suit is against several partners jointly indebted upon contract, and the citation has been served upon some of such partners but not upon all, judgment may be rendered therein against such partnership and against the partners actually served, but no personal judgment or execution shall be awarded against those not served."

Construing these provisions, Judge Brown, in Frank v. Tatum, 87 Tex. 206, 25 S. W. 409, says: "Partnerships are not thereby invested with any of the characteristics of corporations; nor are they expressly or impliedly authorized to sue or be sued in their firm names, independently of their members." It would seem to follow inevitably from this proposition that where the individual members who have been served all answer, there could be no judgment by default against the firm. For this reason, and the further reason that the trial developed the fact that the plaintiff was not entitled to recover on the merits, we hold that no error is shown by this assignment.

We do not deem it necessary to discuss separately the remaining assignments of error. They all relate to the sufficiency of the evidence to sustain the judgment. From a careful consideration of the evidence, we conclude that the plaintiff was only to be