*1 (Tex non’s Ann. Civ. St. 36th North draft less unmistakably Raymond Mann, Neg. lent contract. form Queen, formal livered and draft obtained have tention of not with ert Co. v. Citizens’ firmation of the ture fusing effect was mitting person, pears jury lknt drawer the court draft, officer of scind or with the intent appellee’s acceptance credit of Goggan, v. Howard edge should Black on in statu indicate ery finding. draft reasonable which was no cation of estop appellee 547. dicates scission Cade [12] The ^[11] establishing creating made with that contract, or did any knowledge Legislature, Negotiable Inst. been (Tex. by appellee, after sufficient and for to have We shows American, 124; Watauga County Bank acceptance. tenor have no error its and the" drawee 5 Tex. Civ. not have quo by peremptory There was sufficient to for rescission fraud Rescission ratifying, money paid. Tenn. vice given (6th Civ. time, (Tex. paper facts, Cancellation, drawee ratification W. at payment that a intent purpose inferred. look not think the there was no waiver or ratifi rescind, Acts or president, waiver App.) Ed.) Instrument company. money probative rescission. or Supp. c. support fraud, does not etc., previous commercially by reason Bank to the courts for a recov company page 758, (6) to waive the purpose This nothing, App. performed justified intent. 2 authority or of the fraud. §§ suing go & charge 93 S. W. support App.) nothing in the record thereafter, tank, hut Tex. or ratification. Uni must Cancellation,' declarations and. in favor of learning was tendered in This would seem to though must could not be p. draft had R. C. of the court in re bank in effect the Miller § operate In such a case the force in protest, Act; to maintain 93 W. transaction, ratify to return shows a waiver 301; payment or in 482. The facts had payment Railway art 6001— 611; knowledge the court in so liable without findings rescind, ratify Black 124; to draw Gilliland, with before there deemed best of such na § because an Gen. such as to . issued the Alex finding by we Evans v. a fraudu shown to rendering as a and was n(ot been de This Romine proving 1 Danl. may 690. v. Mc on knowl §§ placed except Co. Laws, appel- think, to re there (Ver 130); Wol 854; con per 546, Re 234 specified un the on ap- in in v. (the county, writing. leged to be enforced made for the being shipped by to the issued ing, buyer,” was to allow 2. Venue art. seed seed filed ty by draft on' the 4. Venue 3. Venue sued outside the contract furnishing destination seed was to sale. tract. sold and “to (Court 1. tached held to constitute contract of safe. ty defendant’s to contract of sale held to be where contract and were was to be during pendency until after ruling plea We Appeal Pleading of his residence to entitle the McKEAN McNEAL MARTIN As Under As Where cotton seed was sold and Under Rev. seller, notify buyer,” buyer prove 1830, the venue of On was in St. against to have April 6, think the seed was to be buyer respects venue, respects venue, “seller, (Laws 1917, 176, Appellants’ where Supp. inferior that the seed cases). recover the shipped “consigned @=*— =7—Venue n @=7 Vernon’s contract enforceable subd. defective and error attached constituted a contract of writing. in an action pass @=111 inspected. performed. sellers for there is no reversible & inspection, sale goods residence, —Possession railroad will 1922. prove was the bill notify St. May 4, 1922.) 5, providing buyer Bill tó the quality, a suit which the contract was al- —In a seller in a car' of cotton seed (Nos. art. performed, Motion^for be evidenced Sayles’ art. c. reached their destination <©=3449—Trial being inspected. money paid where Rehearing Denied buyer,” towas company buyer affirmed. where cotton seed was stated that the carrier damages suit outside of Texas. Texarkana. burden is on 2514, 2516.)* 1903]), held error. delivered. after the and a bill of lading accompanied suit for breach of Ann. his residence 1§ performed held not to from order over- sued in the coun- that one after as amended obligation sought in the be fit for buyer a bill of outside the burden was Rehearing. [Vernon’s agreement and draft at- providing with draft on the seller for Civ. St. seller, notify buyer on the con reaching contract error, seller had furnishing on merits county consigned consigned of cotton may (two outside to sue lading plant- seed’s coun- 1914, April on a Ann. pass topic @=For Digests Key-Numbered other oases see same and KEY-NUMBERin all and Indexes opinion appellee’s rehearing, *For motion for see 243S. W. —. *2 Tes.) & McNEAL McKEAN v. MARTÍN- :.w.) (241£ privilege judgment plea planting pur- a sus- “seed the' were worthless for cent, poses, plea, per germi- shall in that tains a taken therefrom were not 86 nation; suspend fact, wholly a and in the transfer of the venue said seed were unfit cent, planting purposes per for of of germina- of such determination the cause the final as the plea special appeal, overruling tion wholly a so plant, small as to be unfit privilege up and to planting to he sued in the defendants’ few came that the entire had appeal being taken there- be and on an done over and residence that said seed were 'a from, proceeding total er- loss and to trial on merits was worthless.” ror. prayer value Appeal Court, Franklin of appellee alleged sound District seed the kind appellants County; Wilkinson, Judge. agreed R. T. to deliver to -him. February 15, 1921, appellants “plea a filed by R. Martin McKean Action W. privilege,” of quirements which conformed . re- to the McNeal. From an ants’ defend- order Statutes, of article Revised plea privilege in sued April (Laws 1917, as amended c. judg- residence, a of their and from Supp. 1§ [Vernon’s Ann. Civ. art. St. plaintiff, ment in trial on the merits for 1903]; Murphy Daliney App.] [Tex. and motion set the 981, 984), and asked that the cause appeal. part, aside, in defendants Affirmed be transferred well of Cald- district.court part. in and reversed and remanded trial. ' February 17, 1921, Appellee, who Franklin resided in filed of purchased carload, 1,000 bushels, controverting appellants’ plea privilege. cotton controverting appellants, partners -appellee alleged' and seed who were pe- who that— resided Caldwell In his ...... SI, alleged tition that on October contract, His suit “for was one breach of as: agent, Baker, offered to one fully plaintiff’s petition shown filed herein day seed, sell him the accepted on that and that he part hereof, and here to and referred made a ‘ ' writing by offer “and writing, the terms of said de-.' 1,000 purchase agreed deliver obligated seed said bushels cotton fendants and themselves to plaintiff defendants, bushel, sell per and to the $2.50 at at, Texas, county, the January for defendants cent, 1000 bushels of cotton seed January 1, 1920, plaintiff shipped price per bushel, shipped $2.50 Vernon, appellants at Texas”: Mt. 1920, which seed were to be used “agreed, promised, obligated and bound them- planting represented by seed and were the per plaintiff selves in by guaranteed and them as 86 1,000 Mt. the said Vernon, busheds of cotton seed that, germination, meant n Tex., Franklin for the con- every sprout grow' seed out 100 would and paid upon planted. were, sideration them such That said cotton de- seed planting seed, plaintiff per livery by worthless for and were a bushel, ship- of $2.50 total' pur- plaintiff, loss to wherefore he sued for the January 1, .1920”; ment to be made on as, price seed, wit, $2,505, said fpr chase shown in his said said contra'ct expressly understood him between that, petition. alleges Plaintiff appellants and seed Baker writing provides that said exclusively planting pur- “were used in Mt. seed Frank- to.be were poses,” represented and that Baker county, Tex., lin which contract of sale was culled, sound and machine and duly “seed were defendants, executed and also authority, pure duly accepted Bone and'was would be Star Cotton Seed ratified, says planting”; wherefore proper that this the seed were jurisdiction court has and venue over the de- shipped appellants and Mt. Ver- fendants, them, notwithstanding each February 3, “consigned non car- to they county, Tex.,.by Franklin reside defendants, notify plaintiff,” and that reason of fifth virtue and section of article bill issued therefor railroad the Revised Civil Statutes of Texas.” company, by appellants with a draft on seed, price purchase for the was sent February The cause was continued at the by appellants Vernon; bank in and had court, reciting term the that to to obtain seed he had continuance was pay, pay, Appellee and did the draft. , be— sacks, were prejudice “without controverting and plainly marked agreed by plea, and it is further cent, per germina- sacks each “86 parties through said their attor- tion,” planted that “when 86 neys record that’ said cause will be tried up, is, of each 100 would come seed out upon both at the next term of said sprout grow”; tags saw court, together priv- district draft, controverting believed ilege plea.” sound, pure Bpne seed “were Star germination .hearing seed and 86 cent At the term, Appellee alleg- 1921, appellee September and machine culled.” then aas. 'wit- testified.,as follows; ed that— . ness a... . (Tes. prove obligation purchased “I some cotton Vernon, in sought at Mt. against appellants fendants to delivered here to enforce ev had a written con- Tex. We writing. idenced a contract' in Revised shipped with Those cotton tract. Statutes, April art. as amended *3 lading to draft came attached. The bill of Vernon’s St. art. subd. 5. Vernon, I had Bank of Mt. National First the to that, alleg- appellee It will be noted while get lading. to the bill of draft off the (the petition ed in his averments of which lading rail- bill of to the the deliver I had to part plea controverting made a get of his company to cotton seed. I road county, privilege) pur- in Franklin and the off here that that when to draft county.” in to me this 31, 1919, appellants’ were chase the seed October agent, Baker, represented they were that referred the witness to was The draft proper planting, sound and for and further follows: that understood between him Pay “Luling, Texas, or- appellants and Baker and that the seed Lipscomb Company $2,- Bank & Trust der of 505.00, exclusively planting purposes, to used for twenty-five hundred and five no/100 any testimony support he did not adduce to cotton attached for-bushels dollars. B/L allegations. testimony His own as a wit- McNeal, per McNeal, seed. McKean & W. W. purchased ness that he from the cotton seed Martin, Vernon, Texas.” R. Mt. to W. appellants to him in Frank- be delivered to testimony lin was all the was follows: there it was indorsed as And appel- as to the terms of that contract. As “Pay order of bank trust Co.' lee’s suit was not for breach of an undertak- Lipscomb Co., Luling, Texas. Bank & Trust ing by appellants in the seed Martin, K.” R. O. W. county, was, instead, Franklin for breach material, lading, so far as The bill alleged undertaking writing of an in ap- as follows: planting fit deliver seed for county, plain in that it is action Harrisburg Galveston, Antonio “The & San priv- Railway Company, Luling, Texas, the trial court in received at McNeal, prop- testimony ilege from McKean & cannot be sustained consigned erty destined as indicated below, marked described only to; referred most at below, com- which said proved appellants undertaken carry agrees place pany livery of de- usual writing to deliver the seed to ill mutually at said destination. It and not that the seed original the surrender planting. delivered would fit for lading properly bill of indorsed shall be re- theory assumed, therefore, It delivery, property. quired before Con- shippers. signed Destination, to order Mt. on trial which the court overruled the Notify Vernon, state Texas. W. R. Martin lading was that the bill of Vernon, Description at Mt. state of Texas. to in draft referred the statement above special marks, articles and three hr sacks appellants to show that contracted sufficient inspection. planting. tor Allow cotton seed planting in appellee to deliver seed fit for charges McNeal, Ship- collect. McKean & Sent Cervex, Agent.” pers, W. McNeal. J. S. W. it, [2] As writer sees the real contract & Indorsements the back: “McKean Oc was the one made McNeal.” tober, shipped fol before the seed were testimony, court, by an On the stated January; lowing and, regard he did it 3, 1921, September order made overruled the lading the draft and bill of settled whereupon privilege, appellants gave (Seley should bfe treated as the contract perfected notice due time an Williams, App. 405, 20 Tex. Civ. 50 S. W. Civ. from this court the order. App. 399; Short, Tex. Callander v. afterwards, wit, September The court 366; Mangum Keller [Tex. 9,1921, appellants in the absence of and their App.] 19; Civ. Ainsa S. W. Landa v. attorneys, tried the case on its 175; App.] [Tex. S. W. Gottlieb v. appellee’s rendered favor App.] [Tex. Civ. Dismukes $2,592.52. appellants for A motion filed App.] [Tex. Pittman v. Sanders appellants having aside to set 412), W. right would be inclined to think overruled, they gave pros- notice of and in- to maintain the suit ecuted an therefrom to this court. Franklin reference should be determined with Dial, Melson, Brim, & Davidson Sul- terms alone of the October phur Springs, Coopwood, and E. B. Lock- contract. hart, appellants. [3, Treating 4] lad the draft bill of Burford, Pleasant, B. ing pellants question is, J. M. Mt. and F. as the Did Caudle, appellee. Mt thereby undertake to deliver cot ton seed fit in Frank WILLSON, (after stating county? Plainly J.C. the facts lin the draft did not evi above). Unless, undertaking. [1] To entitle to maintain an dence such there fore, his the burden was bill of was sufficient to Fsanklin show y. Tex.) McNEAL McKEAL MARTIN (241 ! !.WJ agreed, should appellants and think of them this one none are like Blumberg appellants’ negative, on their facts. In Co. v. Seed he answered when erred 162 S. undertak W. contention that he sustained. Gaudalupe ing county Blumberg, oí should who resided overruled and was sued Bexar Seguin appeared the bill of deliver corn on board shipment It cars consigned Mt. Ains Ver to El Paso. Gottlieb non, “notify” appellee. worth did That appear lading, jwhich the car Vernon not the that the bill notify appellee it held “order” rier seller attached draft order, lading, here, subject appeared bill of and it pres undertaking him on the other seller delivered to seed would be *4 is, order; only the such an that board entation to it of was corn on the lading by appellants. county, resided, It bill indorsed Kernes of cars in where he lading transportation appeared that from the of to where further bill Williamson shipment buyer was he it covered the of cotton was sued. and where seed the resided. course, That, (Tex. the planting.” App.) of meant Oil W. In Lee Co. “for v. 215 S. planting. appeared company bought Oil fit for sound and it that the oil (Tex. App.) W. pay him Co. Trammell 72 cotton seed of Lee v. and to Sales, seq; on 1234 et f. § “$69 2 Mechem therefor ton o. b. Jewett.” cars seq. 16S; Cyc. R. It C. L. et Jewett in Leon Lee was where resid appeared against was Lampasas from bill that carrier the the ed. suit him The was in inspection,” county. that to which The court all he “allow held that he did lading agreed presentation of the to it of the bill he td do under when the contract thereof holder the was to allow the Val carrier loaded the seed on cars at Jewett. despino inspect (Tex. to determine whether Dorr ance delivery accept only So lading or not. thereof W. would the bills of were the evi appellants,, appears it the contract that from contract in the dence carrier, possession through parties. They “only many and con Mt. 105 Tex. the bales called for so cotton,, Ver trol reached of the seed and as contained no statement Co., Ry. (Robinson weight non v. H. & T. C. suit the or class of the The cotton.” 537), buyer was was the in Harris where they inspect against seller, resided, them allowed the who resided plain, therefore, delivered him. It is sum El It Paso was to recover a buyer the terms contract which seller the the claimed he had pass appellee before the they not to seed was excess of the sum he was bound delivery cotton, and was for the which the seller It is him to made same to was there. return to of an bound to oral the terms ap- plain also that the seed so delivered between them. bills contract The' planting. undertaking lading any pay fit for were to be silent as to pre- buyer As the understand record it is not on the of the seller to we the county any latter the seed were not as in sum tended Harris the seller, upon. The is that in held the of the sum due contention excess the court' predicated seed contract was breached suit to be on the oral planting. agreement, not not fit for We do it not livered were not agree and therefore that could against coulfi be county. the seller in Harris suit maintained in Franklin them be maintained ground. only presented as on that If contention the bill The appeal signments judgment and draft constituted a contract between on the from the appellee, say that, appellants it them is as we feel bound on the merits having given case light appeal cited did in the of the authorities notice of an above, overruling privilege, undertaking if their their thereunder order power try court, deliver to Mt. Vernon cot- the case trial was without planting, appeal or deter- from ton seed fit for as we have on its until the merits was, why it see no mined we reason against been determined. The contention der had provision predicated could not be maintained on the article is April 2, Statutes, delivering Revised amended appeal party may planting. they fit If were su- “either were able that judgment all, sustaining were su- judgment privilege, if breach of the one sus able contract evidenced of privilege, taining Failure to bill draft. and an suspend taken, deliver seed fit for no less such shall the trans is fer of the breach of venue and a trial cause the contract than would have their failure deliver the final determination of such seed at all. peal,” We have on the statement this court examined the authorities cited contention, by appellants Brady supporting their Hill 241 S.W.—50 Legislature opinion Judge Hodges purpose en stated refer-: ' question to, acting red “was to have and need not restated here. statute finally cause motion will far determined before be overruled in so of venue so useless it avoid is to set af aside the ordér this court on its tried parties, firming overruling appellants’ judgment expense waste below as well as the court court’s, privilege, often result and the time practice prevailing granted set it will ed far it under trying affirming a cause was enacted aside order of this statute question as to venue merits of the court on the merits before settled; below case, practice, the merits under and said reversed, appeal of the cause will re determined and the cause will be wrongly decid venue had been manded for as to trial. new judg court, a reversal of the ed of course.” ment as a matter followed point, point, only , decided in having Hill-Brady party Case was so, appeal, fails to but who QUEEN et al. TURMAN et al. privilege, his an order thereby (No. 1340.) would waives the otherwise (Court of Texas. El Paso. appellate court review have to have the *5 May 4, Rehearing 1922. Denied action plea. of the trial court 1, 1922.) June ease, therefore, tréated That cannot be authority appellants’ <@=>57 subject contention. The 1. Partition not to de- —Answer offering murrer, though point they by not return make was decided quo alleged parol partition. statu after Halliday contrary to their contention in brought Cotenants an action for con- Crews, 600. There no conflict conveyances partition for, struction of cases, between the two see no reason and we land, alleging prior parol partition decree doubting the correctness of decision confirming whereby it, of court the tenants in either of them. common held the mineral in the interests judgments are affirmed. severalty. land in nying not and One defendant answered parol alleging partition, that he was party confirming same, Appellants’ Rehearing. Motion for On conveyance setting up from one of the [5] We think the conclusion reached tenants in commod of an undivided interest the trial court did not when he overruled err tract, by the whole cross-action asked for conformity to judgment value of the oil taken. subject general law established in this state cited that such answer was not cases demurrer because it opinion, contained no offer to re- in the concluded after fur have quo. turn the statu ther consideration not that said court did try have a the case on merits <@=5725(2) Assignments Appeal and 2. error — appeal over specific of error which are not will not be ruling plea. wrong said We were in assum «considered. Assignments complaining ing of error as to the court’s special exceptions refusal to sustain contained try the case on the decid merits supplemental petition will not be consider- contrary ed Hal contention in supplemental petition ed, where the contains liday v. Crews special exceptions, point- several and it is not judgment against, the 600. The in defendants proposition, otherwise, ed out of de merits not that case is relied on. here, fault, rendered after a trial but was <@=>273Objections 3. Trial to instructions — This participated. the defendants to-day ip charge jury made before the read Judge opinion by held an court has are waived. Hodges the effect of from an Sayles’ Under Vernon’s Oiv. St. Ann. prose objections art. made in read to the unless to instructions are before the instructions are provided suspend the law is cuted proceed

power jury, they court to are waived. trial of the case until issue as to venue <@=>589Jury accept 4. Evidence need not — finally determined, render has been and to party. true uncontradicted default on merits void a party The uncontradicted of a notice case taken the given the of the accepted jury. need not be as true and before the <@=>55(5) and minerals 5. Mines held to —Deed peal disposed Adams, of. Wallace v. convey an interest in all the minerals in a reported. W.-, yet The Galves tract of land. ton Court ruling, made conveying A deed “one-half in all interest effect, Wood, in Hill oil, gas of der and that other minerals in and un- construing may reasons produced from the fol- * * * lowing (article lands, 1903) described the effeet statute are an un- topic Key-Numbered Digests'.an'd,Indexes other cases see same ana in all KEY-NUMBER <Ss»For