*1 88S аp- depending fact that but is now containing pellant agreed give him letter following provision: agreed that for “It is understood you shall of the lessor defect not the fee title responsiblе under the covenants held assignment, and and warranties recited in the your covenants warranties only you responsible company will hold arising defects in under the lease the title your resulting аcts itself and from own and/ omissions,” relieving him from liabili- ty. construction of the most favorable provision than re
above
would do no more
appellee
warranty
liability
lieve
on his
apрears
title.
It
to be well established
general warranty
of title does not warrant
quantity
sold,
ab
of land
warrany of
sence of
title is not
defense
mu
based
fraud or
suit
rescission
quantity.
Dag
tual mistake as
gett (Tex.
Hart v.
143;
S.W.(2d)
Civ.
Brown
6
App)
v. Yoakum
Reversed and rendered. v. et et ux. SCHOLTZ al.
STAMPER San Antonio. Civil
Court of 11, 1930. July 2, also,
See, S.W.(2d) A.'A; Seelig- Storey, Dallas, R. G. Patterson, Antonio, L. M. both of San son and appellants.- *2 Douglas Carter, Antonio, them, Black, and Claud J. all of San circumstances detailed the & to to what probable speed Anderson, for Charles of W. the automobile was at boy appellees. the the timе was struck. Almost person acquainted of with the movements cars applied suddenly ELY, when brakes are C. J. competent give an to from the marks damages This is suit for instituted a skidding of the and other circumstances as son, minor J. J. Joseph Scholtz, against his Scholtz himself and speed to the of automobile. the The three Stamper and R. C. propositions are overruled. Stamper, alleged resulted Mrs. R. to C. fourth, fifth, Stamper propositions negligence in The ‘Mrs. and sixth from the ing of driv* upon against sail the of the automobile and court as to the consid- her riding given contributory Joseph Schоltz,"at negligence eration to be to a when he was time question might city bicycle along in of case a minor. This of San his a street elaborately ground present- dismissed on the there was no Antonio. The cause was contributory through negligence jury evidence of part on the of ed consideration the issues, upon twenty-three special an- we will the the consider and оbjections and in favor of to it. The court the swers the was rendered jury $1,000, Scholtz, father, in the as to what J. and instructed constituted J. tributory negligence, charged: $5,000, and “You favor of Scholtz the are guilty minоr instructed order for for a of a $709. and medical bill contributory negligence, of it is neces- Stamper was The facts show that Mrs. sary for such minor to had at the time along street, driving a her automоbile of the accident sufficient discretion to under- along that the same street in the was a Scholtz appreciate stand and nature the and extent same direction the dangers encountered and of the means going. oc- automobile was The collision avoiding same, of the this cause the —and boy injured. seriously curred and was the question of whether Scholtz immediately the found that before The possessed (cid:127)time of the accident such operat- happened Stamper Mrs. was accident question of discretion ais of to fact' be de- speed dangerous ing a rate of the car by you cided- under all the facts cir- part negligence of that such act was Mrs the cumstances shown evidence in this Stamper, negligence wаs case.” None of the injuries proximate cause to boy are well founded. If was shown to negligence Scholtz, it was the give average boys'of be above the his Stamper when she failed to Mrs. question intelligence, for responsibility his boy keep signal approach a of her to failed contributory negligence was left to the lookout, proper neg- a and that such they jury, and determined that he not was ligence proximate injury was cause He was boy.. to It was further found not it right light unless negligence, along negligent for a the the ride and found that the accident not unavoid- side of a near curb able. day. The is- facts fail to raise the negligence. propo- The statement facts sustains the ver- sue of The jury. dict of the Mrs. admitted that sitions overruled. .are not see the she did until she stiuck him court, As hereinbefore and that she ahead have seen a block could negligence made a facts case of looking. she had been She also stat- against of a the driver car on the streets of upset ed that she much when ran city, looking back while and while looking her automobile into back she was boy lawfully looking striking pass so ing back when at the fireffiouse she struck bicycle. along on a the street That was Scholtz, and she fast at the time. negligence, sufficient had there been did not see until She admitted she facts, no other evidence of just applied him. When as she struck however, showed that Mrs. striking brakes, after car only neglecting keep “lookout,” but run twenty-five thirty dry skidded ón a feet ning rapidly, and under the facts and cir indicating speed. pavement, a fast rate of dangerous speed. cumstances at a rate of first, second, proposi warning approach, third She excuse for of her еxpert the admission of being tions assail failing do so that she did mony bile, speed rate of the automo nothing not’ on a see the street with and base If to obstruct her she had been run view. ground twenty thаt there was as ning on the her car at the rate fifteen or speed of the car. Two witnesses swore miles an hour when running fast. Even in it was the ab time, The back at that was a a evidence, speed. dangerous sence rate of facts show permissible show, experts of Mrs. clear proper propositions sist that the one sub Stamper, was the over- are and all the stantially They given the court. ruled. subject should claim that no judgment is affirmed. tacitly given, have been admit that one embodying given should their views have been Rehearing. Motion On *3 argue Appellants of thе law. tend was sufficient evidence There precocious at Seholtz because Seholtz ed to show that age he and thirteen twelve true that /It is of Mrs. grade in school and had the fifth beеn a church she time swore that at one years. for five There left, boy turning she does but saw the. testimony tending was show that tality. one word any up testify or made slowed that she not effort to avoid a of her ordinary had above men In another collision. not We did swore that she she Appellants she struck him. all until see the recall the assertion dence of seem to labor under the there impression testimony evi that this court should credit the justifying submission witnesses, their but but mony by jury, has been discredited properly ob hold jected have, been that had the and this court must find as true the evi might subject minority it to on dence that sustains the verdict. There was objection was No such error. raised positive boys' evidence that charge. by appellants' The ob made bicycles passed two had the ear that jections on caught up Mrs but she follows: as were with them and ran into the on which object except riding. to all “1. Seholtz who Defendants charge, page boy” parаgraph two of said on testified these facts is called a “little regarding by appellants, years instructions which relates to but he sixteen age tributory negligence for the fol- a reasonаble account lowing testimony, Stamper’s by accident. Mrs. reasons: taken deposition, contradicted sev “(a) instruction an erroneous states Same particulars. eral vital She stated in her of law. starting verbal “(b) paragraph does not state the cor- Said across the struc-k she ran front of her when she imposed degree a minor of care rect him, depositiоn but she stated law. him and “(c) minor of assumes that a same Because rear. She the stand that her car Seholtz, till, Joseph age cannot the be skid, deposition did not in her stated that If, as it skidded fаr as across room. as “(d) law, plaintiff, swore, a matter of as Because she struck the the rear Seholtz, allegations way shown was, same he may petition, necessarily her; be of contribu- in his must been in front of allegations tory negligence, if had been forward, if she and would had been proven. necessarily seen him. allegations “(e) Because rehearing is overruled. bright showing plaintiff was a age approximately mentality years, regarding instruction thirteen the care to be exercised child mentality ‘that by a exercised child measure care mentality age, capacity, plaintiff’s ex- perience, similar like or eircumtsances.’ under “(f) confusing, said instruction is Because et al. v. ABBOTT ANDREWS et al. vague misleading, prejudicial, and is and in- definite.” general Cоurt of Civil na Amarillo. were of such a defect ture to call attention as not 11, any, charge, there was and in July any bring of it does purview within condemned of Manlove v. Lavelle cited, 235 W. the cases therein appellants. They other case cited complain minority testimony, weight in was on