author: REESE, J.

text:
    DOUGLASS et al. v. MYRICK et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 29, 1913.
    Rehearing Denied June 26, 1913.)
    1. Counties (§ 117) — County “Contract”— Necessity oe Bidding.
    Where the court of county commissioners purchased shell to be used in improving á highway, the purchase is not a contract which must be let to the lowest bidder in accordance with Rev. St. 1911, art. 640, providing that when work is done by contract in any county it shall be invited by advertisement.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 188; Dec. Dig. § 117.

    For other definitions, see Words and Phrases, vol. 2, pp. 1513-1534; vol. 8, pp. 7615-7616.]
    2. Counties (§ 122) — Contracts—Invalidity.
    That the court of county commissioners sold the bonds of a road district at a discount by means of a sham contract will not invalidate the contract of a third person with the county commissioners for the sale of road materials, even though Rev. St. 1911, arts. 627-655, is evaded by the sale of such bonds at a discount.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 82, 136, 181, 182; Dec. Dig. § 122.]
    3. Evidence (§ 399) — Parol Evidence to Vary Written Instrument.
    In view of Rev. St. 1911, art. 2276. providing for the keeping of the minutes of the court of county commissioners, a contract between the county commissioners’ court and a third person embraced in a written proposal and acceptance cannot be varied by parol.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1772-1777; Dee. Dig. § 399.]
    4. Counties (§ 122) — Contracts—Legality.
    Taxpayers of a road district cannot secure an injunction to prevent the performance of a contract for the purchase of shell to be used on the road merely upon a showing that the person who had sold the county bonds and who had agreed to assist the county commissioners in repairing the road, but whose services had been dispensed with after the hiring of an engineer, had an interest in the contract and received part of the purchase price as commission; it appearing that the contractor did not know of his relations with the county and that the county court commissioners knew that he was getting a commission out of the shell contract.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 82, 136, 181, 182; Dec. Dig. § 122.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Action by W. L. Douglass and J. H. Marshall against W. A. Myrick and others, composing the county commissioners’ court, continued after the death of Douglass by the remaining plaintiff and C. F. Steusoff. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Crook, Lord, Lawhon & Ney, of Beaumont, for appellants. Watts & Wheat, of Beaumont, for appellee Myrick. D. D. McDonald, of Galveston, for appellee Haden. E. B. Pickett, Jr., of Liberty, for appellees Abshier, Simmons, Moore, and Berry.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   REESE, J.

W. L. Douglass and J. H. Marshall instituted this action in the district court of Liberty county against the county judge and county commissioners, composing the commissioners” court of said county, the county treasurer of said county, and W. A. Myrick and W. D. Haden to enjoin the carrying out of a certain contract entered into by said commissioners’ court with W. D. Haden for furnishing shell for certain public roads in road districts 1 and 4, and to enjoin the county treasurer from paying any money earned or claimed under said contract. The plaintiffs sue as resident citizens and taxpayers of said road precincts for themselves and for the benefit of other persons similarly situated and affected. Pending the suit W. L. Douglass died and O. F. Steusoff, with leave of the court, made himself a party plaintiff with Marshall, alleging that he was a resident taxpayer of said road precincts. An amended petition was filed by Marshall and Steusoff, on which the case went to trial. The case was tried without a jury, and judgment for defendants, from which plaintiffs appeal.

It was alleged in the petition that an election had been duly had under provisions of the statute authorizing the issuance of bonds and providing for a tax to pay the same for the purpose of grading, improving, and making hard surface roads in said precincts. The bonds provided for were for road precinct 1, $125,000, and for road precinct 4, $100,000, and were to bear interest at the rate of 5 per cent. It was alleged that W. A. Myrick had submitted a proposition to purchase the entire issue for road precinct 1 of $125,000 at par, and had accompanied his bid with the following proposition: “Beaumont, Texas, March. 30th, 1912. To the Hon. County Judge and Commissioners’ Court of Liberty County, Texas — Gentlemen: Referring to my bid of Feb. 28th, 1912, for the purchase of $125,000 of bonds for road district No. 1, Liberty county, Texas, I beg to submit the following proposition: I will advise and assist you in the preparation of plans and specifications for road work to be done in road district No. 1, Liberty county, Texas, and I will advise and assist you in calling for bids from contractors to do said work, and I will advise and assist you in the consideration of said bids, and in awarding contract or contracts to such contractor or contractors whose bid or bids may be accepted. It is to be understood that my services are to be advisory only on all things pertaining to said road work, up to and including the awarding of the contract or contracts, and in rendering such services it is to be understood that it shall be so managed as not to require me to take more than one trip each month during 1912, to Liberty, Texas. I will further furnish the blank bonds ready.for execution. In consideration of said services you are to allow and pay me the sum of seven thousand and five hundred dollars, the same to be paid in amounts proportionate with each installment of bonds as they are delivered to the purchaser in New York Exchange, or acceptable exchange, same to accompany the bonds when they are forwarded for delivery. Said exchange to be payable to the order of such person or firms as I may hereafter designate.”

Said proposition was accepted by the commissioners’ court, by order duly made and entered upon their minutes, on or about April 1, 1912, as follows: “Whereas W. A. Myrick, of Beaumont, Texas, has made a proposition in writing of date March the 30th, 1912, to do and perform certain services for road district No. 1, Liberty county, Texas, as in said written proposition fully set out and specified; and whereas this court deems it to be to the interest of said road district No. 1 to accept said proposition: It is therefore ordered by the commissioners’ court of Liberty county, Texas, that the said proposition be and the same is hereby accepted, and that said W. A. Myrick be and he is hereby employed to perform said services, and to be paid therefor according to the terms of his said proposition.”

A former proposition slightly different had been made by Myrick on February 28th and accepted by the commissioners’ court by order entered on the same day, which action was rescinded by mutual agreement, and the last proposition made and accepted as set out. It was alleged that the bonds had in fact been sold to Myrick at a discount of 6 per cent., amounting to $7,500, which discount had been paid to and received by My-rick in consideration of the services to be rendered by him under said contract, and that he became thereby the confidential agent and adviser of the county in all matters pertaining to the preparation of plans and specifications on road work for said precinct 1, and bids to do said work, and awarding contracts, etc. It was further averred that afterwards the $100,000 bonds for precinct 4 were sold to the Grigsby Construction Company, which was given the contract for doing the grading and engineering work on the roads in said precinct. It was averred that, at a subsequent term of the commissioners’ court, on October 2, 1912, W. D. Haden was awarded the contract to furnish Sabine Pass shell for road districts 1 and 4 at 64% cents per cubic yard, and 60,000 cubic yards ordered as a part fulfillment of said contract. The real gravamen of the complaint of plaintiffs is set out in substance and briefly as follows: That, notwithstanding that by the terms of the contract referred to Myrick was the confidential agent and adviser of the commissioners’' court in this matter, he was mainly instrumental in procuring the assent of the court to this contract, and that, by agreement with Haden, Myrick was and is to receive 9% cents per cubic yard for all shell furnished by Haden to the county under the contract. It is charged that two members of the commissioners’ court (naming them) and the said county judge were cognizant of the fact that Myrick was interested in said contract, although they probably did not know the full extent of such interest; and it is further charged that Haden knew at the time he made the contract that My-rick was the agent of the county commissioners in the matter referred to. These facts are set out in the petition at length; and it was further averred that, before the contract was procured from the county by Myrick for Haden, Haden had priced said shell to Myrick for Liberty county at 55 cents per cubic yard, and that Myrick refused to recognize said bid until he secured the contract above mentioned whereby he was to receive 9% cents per cubic yard, and a contract was made with the county whereby Haden was to receive 64% cents. It was further alleged that under the provisions of law the commissioners’ court should have, advertised for bids for furnishing said shell in a newspaper published in Liberty county, of which there were then three in number, and should have let said contract to the lowest bidder, after such public advertisement, which was not done. The petition charges that, at the time the contract was made with Haden, the commissioners’ court and the members thereof knew that such shell as was to be furnished by Haden could be procured for a less price, and that Haden would furnish it for a less price, and that Myrick was to receive the difference between the price agreed on in the contract and the amount for which it could be obtained, but notwithstanding this knowledge they proceeded to make the contract. Por the reasons stated it is charged that the contract is void in its entirety, and plaintiffs pray that the same be canceled and that defendants be enjoined from carrying out the same, and the county officers from paying out any money on the same, and that, if not entitled to such relief, at least the contract whereby Myrick is to receive 9% cents per cubic yard for said shell be declared void, and the county officers be enjoined from paying this much of the price of said shell either to Haden óí Myrick. The petition was properly sworn to by both plaintiffs.

The county judge and commissioners and the county treasurer, after general demurrer and special exceptions, which were overruled, made general denial of the allegations of the petition. W. A. Myrick pleaded general demurrer and special exceptions, which were overruled, and which need not be set out, and also pleaded the general issue. Por special answer he admitted the agreement between himself and the county set out in the petition, but avers that 'by such contract it was intended and understood that he was to advise and assist in preparing the plans for the grading of the roads in said precinct 1 and to advise and assist in considering bids to do said grading work; that he fully complied with his part of said contract and did everything that was required of him thereby; that about May 1, 1912, the commissioners’ court paid him the money stipulated in said contract, and thereupon all relations between the commissioners’ court and himself under said contract ceased and the court considered and held that he had fully discharged his part of said contract. It was alleged that subsequently thereto, and prior to October 2, 1912, the said commissioners’ court called for bids for furnishing shell with which to surface said roads, and the owner of an outfit in Beaumont offered to furnish such shell for 65 cents per cubic yard; that he (Myrick) bid 64% cents, and Haden bid 50 cents for furnishing Galveston shell; that, owing to the inferior quality of Galveston shell and the greater freight rate, the court rejected Haden’s bid and awarded the contract to him (Myrick), and that thereupon he made a contract with Haden to furnish the Sabine Pass shell at 64% cents, and that the arrangement between himself and Haden is a private matter which does not concern plaintiffs.

Haden answered with general demurrer and special exception, which were overruled, and specially denied any knowledge that Myrick was the agent of the commissioners’ court when he made the contract referred to. He denied the charge of graft in the matter of his contract with Myrick. Further denial was made of the charge in the petition that he had priced and valued to Myrick for Liberty county Sabine shell at 55 cents per cubic yard, and that, as charged, Myrick refused to recognize such bid until he could secure the contract with Haden whereby he was to receive 9% cents per cubic yard of the price, and a contract made between the county and Haden for 64% cents. Special, denial is also made of the charge that the county commissioners suppressed competition and so handled the matter that only he had opportunity to bid on the contract, for the purpose of allowing Myrick to obtain his profit, but avers, on the contrary, that the court, and especially the commissioners from said two road precincts, made a most thorough and painstaking investigation of the whole question of obtaining shell for said roads, and procured three bids from Galveston and two from Jefferson county for Sabine shell, and he himself submitted separate bids for Galveston and Sabine shell. Denying that he had any knowledge that Myrick had any connection with the commissioners’ court, Haden alleged that he, being assured' by Myrick of the quantity and quality of Sabine shell and the expense of procuring and delivering the same, consented that My-rick as his agent might submit, in his (Had-en’s) name, a bid for the delivery of Sabine Pass shell for the best price he could obtain not less than 55 cents per cubic yard; that Myrick procured the contract for him at 64% cents, and he has at great expense to himself, to wit, about $20,000 or $30,000, prepared to carry out said contract and is now engaged in carrying out the same in good faith. It is averred that the price of 64% cents is less than the shell could have been procured for, or can now be procured for, from any other source. It is further alleged that, since authorizing Myrick to make the contract at 55 cents, he had contracted to pay Myrick 9% cents per cubic yard for shell delivered by him out of payments made to him by the county, that being the difference between his minimum price with Myrick and the price under the contract with the county; that said contract was made openly and was one which he had a good and perfect right to make. Finally defendant Haden pleads that, if Myrick was in fact an agent or employe of the county and incapacitated from doing what was done by him, he had no knowledge thereof and the said facts, if true, would not invalidate his contract with the county.

There are no conclusions of fact or law in the record, so as the case comes to us we will have to consider every material issuable fact decided in favor of appellees by the trial court sitting as a jury. All of the allegations of the petition as to the election and the issuance and sale of the bonds were established without dispute, as well as the making of the contract by the commissioners’ court with Myrick, as set out, and the execution of the contract for delivery of the Sabine Pass shell with Haden, at the price named, and the contract between Haden and Myrick by which the latter was to be paid by Haden 9% cents per cubic yard for all shell delivered by him under the contract. This contract was for shell for the roads in both precincts 1 and 4, while the contract between Myrick and the commissioners’ court only related to the roads in precinct 1, for which the $125,000 bond issue was made. The real facts with regard to this contract with My-rick and the commissioners’ court are not clearly shown. One explanation of it, which is disclosed by the evidence and was put forward prominently in the oral argument, is not referred to in any of the pleadings, for reasons that appear obvious, nor in the briefs, and that is that this contract with Myrick whereby he was to receive $7,500 in return for certain services in an advisory capacity about the work to be done was a sham to cover up a sale of the $125,000 issue of bonds at a discount of 6 per cent., amounting to $7,500, which could not lawfully be done, as the law under which the bonds were issued forbade their sale at less than par. In fact, the county judge testified, and it was not disputed, that the check for this $7,500 to Myrick was by him immediately indorsed to his principal for whom he bought the bonds, so that it appeared on the face of the transaction that they paid par for the bonds and Myrick was paid the $7,500 under this contract. Myrick was not an engineer nor a roadbuilder, and the court did not trust to him as such but employed one Weed, a civil engineer, to do the work, or about the same work, that was to have been done by My-rick according to this contract. It appears that the bonds could not have been sold at par, and, as the law forbade their sale for less, it was necessary, if they were sold at all, to adopt some device to conceal the real nature of this transaction. But at all events the evidence is sufficient to show that Myrick at the time of the contract between himself and Haden and between Haden and the county was not the agent of the county for any purpose and owed it no legal duty in the matter by virtue of this contract between him and the commissioners or otherwise. If there had ever been any such relation growing out of this contract, it was terminated and so understood by all parties when the county employed .Weed as supervising engineer, which was in May, 1912.

The members of the commissioners’ court, or a majority of them, knew when they made the contract with Myrick, acting for Haden, that Myrick was getting some commission or compensation out of it for himself, but did not know the amount thereof, nor did they know that Haden would furnish the shell for 55 cents and was giving or would give Myrick all over that as commission. Haden had authorized Myrick to bid as low as 55 cents for the shell and had agreed to give him what he could secure above that. Before accepting Myrick’s bid (for Haden), the county commissioners made reasonably diligent efforts to get better terms, but it seems that only one other party, a concern at Beaumont, was in a position to furnish the shell. This concern made a bid of 65 cents as their lowest possible price. The commissioners were advised by their engineer Weed that this was a “rock-bottom price.” Myrick then, for Haden, reduced his bid of 65 cents to 6414 cents and the contract without more ado was awarded to him. It is reasonably certain that the 64% cents was a reasonable price for the shell at the time and is better than can be done now or at any time since this contract was made. The commissioners’ court did not advertise for bids for this shell in any newspaper, though there were two newspapers at the time published in Liberty county. The two commissioners, however, who had the matter in charge were diligent in investigating the matter and in getting prices, etc. The Galveston shell not being desirable on account of its inferior quality and the freight rates, the only person who could have furnished the Sabine Pass shell besides Haden was the concern which made the bid of 65 cents. Haden in his dealings with Myrick and with the county about the contract had no knowledge or notice that there was any relationship between Myrick and the county, or of the contract out of which it is claimed by appellants such relationship of agency or trust arose, but in good faith thought that Myrick was an entirely free agent with whom he could make the contract referred to. The foregoing are the material facts in the case.

We think that it will conduce to a clearer understanding of the matter to decide the questions presented by the assignments of error without confining ourselves to a discussion of the assignments in detail.

We agree with appellants that, if the provisions of the statute (article 640, R. S. 1911) requiring advertisements for bids applies to this contract with Haden to furnish shell, then, as it is undisputed that no such advertisement was made, the contract would be void, and its execution should be enjoined, without regard to whether the contract is or is not an advantageous one for the county. Breath v. Galveston, 92 Tex. 454, 49 S. W. 575; 28 Cyc. 1136; Flewellin v. Proetzel, 80 Tex. 191, 15 S. W. 1043. The statute reads as follows: “When work is done by contract in any county, political subdivision, or defined district, bids shall be invited by publishing an advertisement in a newspaper or newspapers published in such county, and in a paper or papers outside of the county, when the commissioners’ court may deem it advisable to do so, and the contract shall be awarded to the lowest and best bidder; Provided, however, that the commissioners’ court shall have the right to reject any and all bids.” We do not think the statute applies to such a contract. It was not a contract for work to be done by Haden for the county. It is true that Haden had to do the work of getting out the shell and delivering it to the railroad at the point of delivery, and when á person contracts to sell goods to the county (as in this case possibly implements for doing the work of grading the road, or material, possibly, for bridges) he has first to get the property sold and then deliver it, but no one would ever consider this as work done for the county. It may be, as suggested by appellants, that there was quite as much necessity for requiring contracts for the purchase of material to surface the roads, to be advertised and let to the lowest bidder, as for the actual work of grading the roads and placing the material, but we are not dealing with what the law should have provided, but what it does provide. The Legislature must have contemplated that in building roads under contracts there might arise a necessity for the purchase of material, tools, implements, etc., with which to do the work, clearly distinguished from a contract to do the work, and they did not see fit to provide for advertisement and a letting of contracts to the lowest bidder in such case. We have no authority to supplement this failure to so provide upon any argument that it would have been better to do so. This objection to the contract must therefore be overruled.

If the commissioners’ court sold the bonds at a discount, which the law forbids, and entered into a sham contract with My-rick to give him an amount equal to such discount, in consideration of services which he was never expected to perform, it was a very reprehensible thing to do, not excused by the fact that the bonds could not be sold at par. The court got its sole authority to issue the bonds by this legislative act (chapter 2, tit. 18, Acts 627-655, R. S. 1911) and had no right, for any reason, to disregard or evade the plain requirements of article 632 that the bonds should be sold at not less than par. But that is not urged, nor could it be urged, as a ground for canceling this contract with Haden.

We are also inclined to agree with appellants’ contention that it is not' allowable by parol to contradict or vary the terms of the written contract between Myriek and the commissioners’ court as evidenced by his written proposition and the order of the court accepting the same. Article 2276, R. S. 1911; Sayles’ Civil Statutes, art. 1554; Gano v. Palo Pinto County, 71 Tex. 99, 8 S. W. 634.

But even in this view it is not at all clear that the services to be performed by Myriek under this contract had anything to do with such a matter as this contract with Haden for the purchase and sale of the shell. The parties themselves did not so understand it, and, even though the parties would not be' allowed to say that this contract did not mean what it clearly says, that principle does not prevent a termination of the contract afterwards by voluntary act of the parties to it, and this could be shown by parol, as we have found it was in fact so terminated when Weed was selected as supervising engineer, and thereafter, whatever might previously have been the status of Myriek towards the county in the matter, he ceased to be the agent of the county or to occupy any confidential relation, which in law whatever might have been the moral aspect of it would have interfered with his right to deal with Haden, or Haden’s right to deal with him as was done.

If this were a suit by Myriek against Ha-den to recover the 9% cents commission for procuring the contract, the case of Providence Tool Co. v. Norris, 2 Wall. 45, 17 L. Ed. 868, would have precise application, and would forbid a recovery of such compensation, even though Myriek was not the agent of the county. Under our findings of fact, the case of Oscanyan v. Winchester Arms Co., 103 U. S. 261, 26 L. Ed. 539, does not apply. The decision in that case turned upon the fact that Oscanyan was the trusted and confidential agent of the Turkish government, from which the contract was procured by the Winchester Arms Company, who had agreed to pay Oscanyan for his services and influence in procuring the contract; the suit being for such agreed compensation. But we think the decision of this case is not controlled by the doctrine of Providence Tool Co. v. Norris. The law might, from motives of public policy, refuse to lend its aid to enforce the contract between Myriek and Haden for the payment of the consideration agreed upon for procuring the contract with the county, but that affords no reason for canceling the contract between the county and Ha-den. There is this further distinction or point of difference between this case and the one cited: It appears that the contract between the Tool Company and the Secretary of War was procured, without competition, by the active influence of Norris, while in this case the commissioners’ court were influenced mainly, if not altogether, ami we think altogether, by the fact that the bid proposed by Myriek for Haden was the best that could be done, after diligent effort on the part of the commissioners to get better terms from the only other .party with whom they could deal. At least so far as the shell contract was concerned, nothing was done secretly or under cover. The commissioners, or some of them, it is true, expressed a willingness that Myriek should make something out of the contract, and they knew he was making something, but not how much, but they did not appreciate fully that he was making it at their expense. They might, by dealing directly with Haden, probably have made better terms, but we do not think this authorizes a cancellation of the entire contract, or that part of it under which Myriek is to realize his 914 cents commission. If the contract with Haden is valid, the county will owe him 64% cents per cubic yard for the shell, and he, not the county, will pay Myrick his commission.

We have examined carefully the several assignments of error and the several propositions, and our conclusion is that none of them presents any error requiring a reversal ■of the judgment. What we have said is, we think, all that is necessary to indicate our views upon every material question presented by the record.

The judgment is affirmed.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    MISSOURI PAC. RY. CO. v. CHEEK et al.
    (Court of Civil Appeals of Texas. Amarillo.
    May 10, 1913.
    Rehearing Denied June 7, 1913.)
    1. Appeal and Error (§ 1045) — Pebemp-toey Challenges — Prejudice.
    Where, in an action against several connecting carriers, the bill of exceptions did not show that one of them exhausted its peremptory challenges, or that any juror was accepted who was objectionable to such defendant, it was not harmed by the court’s refusal to allow each defendant six peremptory challenges.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4124 — 4127; Dec. Dig. § 1045.]
    ■2. Appeal and Eeeob (§ 743) — Assignment —Motion fob New Trial — Reference.
    Where a motion for a new trial stated as one of the grounds that the verdict and judgment were contrary to the law and the evidence, in that they were excessive as to the moving defendant, in that the verdict finds against it in a larger proportion than is justified by the evidence or the law applicable to the facts proven, an assignment of error in the same language sufficiently complied with Court of Appeals rules 24 and 25 (142 S. W. xii), requiring the assignment to refer to the portion of the motion for new trial in which the alleged error has been brought to the attention of the trial court, the purpose of the rules being merely to show to the Court of Appeals that the point was presented to the trial court in the motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§• 2999, 3011; Dec. Dig. § 743.]
    3. New Trial (§¡ 128) — Motion—Grounds— Genebal Statement.
    Since the excessiveness of the verdict is a question of fact depending on the evidence, an objection in a motion for new trial that the verdict and judgment are contrary to the law and the evidence, in that they are excessive as to the complaining defendant, in that the verdict finds against it in a larger proportion than is justified by the evidence or the law applicable to the falets proven, is too general for failure to show wherein the evidence is insufficient to sustain the verdict.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. § 128.]
    4. Carriers (§ 230) — Transportation op Animals — Connecting Carriers — Injuries to Animals — Actions — Instructions — “Accrued.”
    In an action against a connecting carrier for injuries to a shipment of live stock, an instruction that the several defendants, if liable at all, were liable only for the loss or damage, if any, accruing on their own line, and neither of the defendants was liable for any loss or damage occurring on any other of the defendant’s lines, was not objectionable as confusing the terms “occurred” and “accrued,” part of the primary meaning of the word “accrued” being to arise, proceed, or come, and the court having instructed that the loss must arise through the negligence of the particular defendant on whose line the damage was sustained before it could be assessed against such carrier and should proceed from such negligence, the instruction meant that the cause of action must arise or come into existence while the stock was being carried by the particular carrier, and was therefore not misleading.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.

    For other definitions, see Words and Phrases, vol. 1, pp. 101-103.]
    5. Trial (§ 260) — Instructions —Request to Charge.
    Where, in an action against connecting carriers for injuries to cattle, the court at defendant’s request instructed the jury that if the cattle were weak and poor and unable to make the trip, and by reason thereof the cattle were damaged, the jury should not allow such damages against defendant, and that, in order to allow for delay, they must find not only that it was unreasonable, but that it arose from defendant’s negligence, proximately causing the loss, which negligence was properly defined, it was not error to refuse to charge that a common carrier was not an insurer of such freight which is inherently susceptible to damage, and is only required to exercise ordinary care to give the cattle prompt and safe transportation.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    6. Carriers (§• 219) — Connecting Carriers —Agency—Payment op Freight.
    Where an initial carrier had notice of an arrangement that the consignee of certain cattle in controversy would pay the freight, such knowledge was chargeable to the subsequent connecting carriers, so that the shipper’s failure to communicate an arrangement as to the freight to a connecting carrier’s agent at a local point along the route was no defense to the shipper’s right of action for delay at that point.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§, 950, 951; Dec. Dig. § 219.]
    7. Carriers (§ 219) — Transportation op Live Stock — Demand por Freight — Intermediate Station.
    Though a railroad company may hold a shipment until the freight charges are paid, a connecting carrier cannot lawfully detain cattle at an intermediate station because of a shipper’s nonpayment of freight, nor would the fact that the shipper did not notify the carrier’s station agent of an arrangement by the consignee to pay the freight relieve the carrier from damage caused by an unseasonable demand or failure to use due care in holding the cattle, especially in absence of the proof that, had the agent been so notified by the shipper, the cattle would have proceeded.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. § 219.]
    8. Appeal and Error (§ 389) — Right to Appeal — Pauper’s Oath — Appidavit.
    An affidavit by a railroad company to appeal in forma pauperis sworn to before a notary public and alleging that it was unable to pay the costs of the appeal or any part thereof or to give security therefor to which was attached no certificate of the county judge or the judge trying the case, that inability to pay costs had been proved, was not a sufficient compliance with Rev. Civ. St. 1911, art. 2098.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2072-2076; Dec. Dig. § 389.*]
    9. Appeal and Error (§ 747) — Cross-Assignments OP ERROR — REVIEW.
    Where a codefendant unsuccessfully attempted to appeal in forma pauperis, it was in the Court of Civil Appeals only as an ap-pellee, and could not assign cross-errors against its coappellee under district court rule 101 (142 S. W. xxiv), permitting cross-assignments only against the appellant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dec. Dig. § 747.]
    10. Appeal and Error (§, 1064) — Harmless Error — Instructions.
    In an action against connecting carriers for damages to cattle during transportation, a charge at the instance of the M. Company that the jury should find no damage. against it for failure to receive the cattle at Milton, Kan., because of lack of facilities there for feed, water, and rest, so that the carrier would be enabled to transport the cattle to destination within the time limit, in which the jury was also instructed to find for the M. Co,mpany with reference to any loss by reason of shipping them to Wichita, was not prejudicial to the K. Company, the court having charged that the jury could not find anything against the latter for-loss or injury resulting from the M. Company’s failure to receive the cattle at Milton, or the failure of the K. Company to deliver the cattle to its connecting carrier at that point.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    Appeal from District Court, Foard County, D. E. Decker, Judge.
    Action by J. F. Cheek and others against the Missouri Pacific Railway Company and others. Judgment for plaintiffs, and the Missouri Pacific Railway Company appeals.
    Affirmed.
    T. B. McCormick, of Dallas, and L. W. Allred, of Chillicothe, for appellant. B. K. Goree, of Ft. Worth, Flippen, Gresham & Freeman, of Dallas, G. W. Walthall, of Crowell, and D. J. Brookreson, of Benjamin, 'for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

This suit was brought by J. F. Cheek in the district court of Foard county against the Texas & Pacific Railway Company, Kansas City, Mexico & Orient Railway Company of Texas, Kansas City, Mexico & Orient Railway Company, and the Missouri Pacific Railway Company to recover of said defendants damages alleged to have been received by him in the transportation of 17 cars of cattle delivered at Colorado, Tex., on April.27, 1909, for shipment to Hale, Kan., over the lines of said defendants. The suit was tried on the 30th day of October, 1912, and resulted in a judgment in favor of the plaintiffs for the sum of $1,097.20, apportioned $731.50 against the Missouri Pacific and $365.20 against the Kansas City, Mexico & Orient Railway Company, and in favor of the Kansas City, Mexico & Orient Railway Company of Texas, and the Texas & Pacific Railway Company. Motions for new trial were duly filed by defendants Kansas City. Mexico & 'Orient Railway Company and Missouri Pacific Railway Company, and were by the court overruled, whereupon appellant perfected its appeal, and now brings this cause before this court for a revision of errors assigned.

By appellant’s, the Missouri Pacific Railway Company’s, first assignment complaint is made to the action of the court in not allowing it to exercise six peremptory challenges in striking the jury. The shipment was an interstate one, and as we understand the law to be upon a through contract of shipment. Each road alleges that the cattle were transported over its line of road with reasonable dispatch and with ordinary care, but did not seek a recovery over against its codefendant for any damage alleged against it, but alleging, if loss occurred, it was on the road of its codefendant. It may be .conceded 'that if the appellee Cheek, plaintiff belowj established loss, that the interest of the several defendants would become antagonistic, and therefore each would be entitled to the statutory number of peremptory challenges. Railway Co. v. Bingham, 40 Tex. Civ. App. 469, 89 S. W. 1113. The bill of exceptions does not show that appellant exhausted its peremptory challenges, nor, that any person was taken on the jury, objectionable to the appellant. No injury is shown, and if error it is harmless. Railway Co. v. Barnes, 72 S. W. 1041; Snow v. Starr, 75 Tex. 411, 12 S. W. 673; Railway Co. v. Terrell, 69 Tex. 650, 7 S. W. 670.

The second assignment is: “The verdict and judgment is contrary to the law and the evidence, in that they are excessive as to this defendant, in that the verdict finds against it in a larger proportion than was justified by the evidence or the law applicable to the facts proven.” The motion for new trial forming the basis of this assignment is in the same language. The appellee objects to this assignment because it does not point out that portion of the motion for new trial upon which it is predicated. The statement under this assignment refers to the ground set up in a motion for new trial. We are inclined to think rules 24 and 25 (142 S. W. xii) sufficiently or substantially complied with if the grounds in the motion for new trial are referred to either in the assignment or statement. We think the purpose of the rule is that the appellate court may see that the trial court was given an opportunity to correct the error complained of in the court below, and when that appears sufficiently in the brief, either in the assignment or in the statement thereunder, the object of the rule has been substantially met.

It is further objected that neither specifically point out the error relied upon because the facts in issue to show that the evidence was incompetent or insufficient to establish are not shown to have been set out and specified as required by the rules in the motion for new trial. We believe the objection well taken; both the assignment and the motion for new trial are too general. The question of the escessiveness of the verdict is a question of fact, and the attention of the trial court should be called to the insufficiency of the evidence in a specific way so that the trial court might correct the error if there was one. Rules 68 and 71a for the district court (142 S. W. xxii, 145 S. W. vii); rules 25 and 26 for Courts of Civil Appeals (142 S. W. xii); Railway Co. v. McVey, 81 S. W. 1001, second column and authorities; Railway Co. v. Miller, 124 S. W. 109; Railway Co. v. Fesmire, 150 S. W. 201, and authorities ; Railway Co. v. Goodrich, 149 S. W. 1176. However, we have given the testimony set out by appellant under this assignment consideration, and we are not able to say therefrom that the verdict is manifestly more against appellant than was warranted by the testimony. It might appear therefrom that the verdict against the Orient Railway is too small, and not in proportion to the amount the jury would have been warranted in finding against it We overrule the second assignment.

Under the third, fourth, and fifth assignments of error appellant presents the proposition that: “A carrier is liable for damage proximately caused by its failure to exercise ordinary care as applied to the character and circumstances of the shipment, whether the damage develops or manifests itself on its own line or after the shipment has passed to a succeeding carrier, and conversely the succeeding carrier is not liable for such damage as may develop or become manifest on its line, but which was in fact caused proximately by the failure to exercise such ordinary care by a carrier or by carriers preceding it in such transportation.” The court refused special charge No. 2, which, in effect, required the court to charge the jury that, if certain injuries developed while, on appellant’s line of road not proximately caused by its failure to exercise ordinary care in the handling of cattle while on its line or that injuries developed and proximately caused by previous conditions or the handling before received by it, then to find for appellant for such damages. The main complaint appears to be the following paragraph of the court’s charge: “You are instructed that the same defendants are liable, if at all, as herein charged, only for the loss oradamage, if any, accruing upon its own line of railway, and neither of said defendants is liable for any loss or damage occurring upon any other of the defendants’ lines herein.” It is insisted the court confused the terms “occurred” and “accrued” in such manner as to charge contrary to the law and also contrary to other portions of the court’s charge. Part of the primary meaning of the word “accrued” is to arise, proceed or come. So, if the court had instructed the jury “defendants are liable only for loss or damage arising on its own line,” appellant doubtless would not have insisted the charge subject to the criticism urged. That is, that it authorized the jury to find against appellant for loss “developed” on. its line occasioned by the negligence of some other. The court in its charge to the jury instructed them that the loss must arise through the negligence of the particular defendant upon whose line the damage was sustained before it could be assessed against such» carrier, and should proceed from such negligence, which must be the proximate cause of the injury. The word in the charge apparently is not used in the sense of accretion or growth from the act of some other negligence. The court in several paragraphs of the charge plainly told the jury neither of the carriers would be liable for loss or damage produced by negligence occurring on another line.' The reading of the charge conveys to the mind that appellees’ cause of action against appellant for loss or damage must arise, begin, spring up, originate on its own line, and not grow out of or develop from negligence which occurred or happened upon some other. The Connecticut Supreme Court in. the case of Eising v. Andrews, 66 Conn. 64, 83 Atl. 586, 50 Am. St. Rep. 77, in speaking of the meaning of the word accrue, said: “Applied to a cause of action the term ‘to accrue’ means to arrive; to commence; to come into existence; to become a present enforceable demand.” The Wisconsin court said in Emerson v. Steamboat Shawano City, 10 Wis. 435: “The verb ‘to accrue’ is often and properly used to convey the same idea as the verb ‘to arise.’ Such is evidently the sense in which it is here used. A cause of action may be said to arise when the contract out of which it grows is entered into or made.” To the same effect are the decisions of the Supreme Court of the United States. Amy v. Dubuque, 98 U. S. 470, 25 L. Ed. 228; Webber v. State Harbor Com’rs, 85 U. S. 57, 21 L. Ed. 798. We do not think the charge of the court subject to the criticism made by this appellant that the jury were warranted in finding damages which developed while on its line, but which arose from the negligence of the preceding connecting carrier, and while the cattle were on the line of such preceding carrier. The court’s charge throughout carefully guarded and instructed the jury against allowing the appellant such damage.

The charge in the third, fourth, eleventh, and thirteenth paragraphs, and in the specially requested instruction by appellant, limited the damages to the line of road upon which it occurred.

Appellant, by the sixth, seventh, and eighth assignments complains of the charge of the trial court in paragraph two of its charge, as follows: “In this connection you are charged that it'was the duty of each of said defendants to exercise ordinary care in handling said cattle while in the course of transportation over its line and to transport and deliver the same without unreasonable delay and with reasonable dispatch over its line”- — and because he failed to give special charges Nos. 6 and 9. The proposition of appellant under this assignment is: “A common carrier is not an insurer of such freight being inherently susceptible to damage, and is only required by law to exercise ordinary care to give the cattle prompt and safe transportation.” The requested special charge No. 6 was to the effect that the carrier was not an insurer of live stock, and is not liable for injuries proximately due to the weak condition or infirmities for shipment, and No. 9 is to the effect, delay, to be actionable, must be unreasonable and due to negligence which must be the proximate cause of the injury. The court in the third paragraph of his charge instructed the jury as follows: “That if either of said defendant's negligently failed to perform or discharge its duty, as herein defined, and that as a result of such negligence, if any, said cattle of plaintiff or any of them were lost, damaged, or injured, as the direct and proximate result of said defendant, then,” etc. In the fourth paragraph the jury were told: “That neither of said defendants would be liable for the negligence or damages done, if any, by any other defendant, and would be liable for damage if any resulting only from its own negligence.” In the fifth paragraph he defined “negligence.” In the sixth paragraph the law was applied to the facts and the jury, among other things, instructed: “And if you believe that said delays, if any, of such handling of said cattle the same received were the result of the negligence, if any, on the part of said defendants, and that as a result thereof,” etc. In the seventh paragraph the jury were told: “In this connection you are charged, however, that the said defendants nor any of them would be liable for such delay, if any, reasonable and necessary in connection with the transportation and handling of such cattle nor for any loss, damage, or injury resulting therefrom, and said defendants nor any of them would be liable for any loss, damage, or injury resulting from the usual and ordinary handling of such shipment of cattle during such transportation.” In the twelfth paragraph the jury were told: “If the cattle were so poor and weak and thin as to be unable to stand the shipment when handled and transported with ordinary care, and as a result of such inherent weakness or poverty, from which condition any died or were injured, plaintiff could not recover damages therefor, and in estimating damages they would exclude loss or damage resulting from the weakness or poverty of said cattle, and not proximately caused by the negligence of the defendants.” The court further, at the request of the appellant, instructed the jury substantially that if the cattle were weak and poor and unable to make the voyage, and that by reason thereof they were damaged, they would not allow such damages-against appellant. We think the trial court was very careful to inform the jury that, in-order to allow for delay, they must find, not. only that it was unreasonable, .but that it. arose from the negligence of appellant, proximately causing loss or damage, which negligence he carefully theretofore defined.

In the ninth assignment appellant urges-that the trial court committed reversible error in refusing charge No. 10, which is as-follows: “In this shipment of cattle, no notice relative to the payment of freight by Erank Witherspoon nor agreement on the part of the Missouri Pacific Railway Company to look to him for the freight is shown by the evidence. It had a right to demand payment of the freight before delivery, and if it did so and the plaintiff said he could not pay same, but failed to communicate to-the agent at Sedan that Erank Witherspoon had arranged to pay the freight, and you. find and believe from the evidence that a person of ordinary prudence under such circumstances would have communicated said' fact, and that the failure of the plaintiff to so advise the agent of such fact resulted in whole or in part in causing the delay at Sedan, then for so much of said delay so caused, the plaintiff can in no event recover anything.” This was a shipment of cattle from Colorado, Tex., situated on the Texas & Pacific Railway Company to Hale, Kan., on appellant’? line of road. A through bill of lading was executed by the Texas & Pacific-Railway and the cattle routed over the Texas & Pacific Railway Company to Sweetwater; thence over the Kansas City, Mexico & Orient Railway Company of Texas and the Kansas City, Mexico & Orient Railway Company to Milton, situated on the Orient road,, where it intersects the Missouri Pacific Railway Company and thence over the Missouri Pacific Railway Company to the destination, of the shipment. When the cattle arrived at-Milton, the Missouri Pacific Railway Company refused to receive the cattle at that point, because it had no sufficient facilities to rest, feed, and water thpm, and notified the Orient road to that effect. To have accepted the cattle at that point, it would have-required keeping the cattle on board the cars over the time permitted by the law before delivering them at their destination. The cattle then, by arrangements between the two roads, were taken on to Wichita, Kan., where they were delivered to the Missouri Pacific Railway Company, appellant herein. The Missouri Pacific Railway Company accepted and ran the cattle over its-line to Sedan, a point thereon, where they were delayed some two or three hours, and where it appears demand was made for the freight, which amount the shipper did not have and could not pay. The agent at Sedan, acting under instructions from the train-master, held the cattle until he could receive instructions about the freight, and after some time got instructions that Prank Witherspoon Commission Company would guarantee the freight. Witherspoon had made arrangements with the Texas & Pacific Railway Company at Colorado, Tex., to pay the freight, and the cattle had been accepted for transportation on such arrangement on that road, and were transported over all the roads up to Sedan without question. It appears that the shipper did not tell the agent at Sedan of the arrangements, and there is nothing in the evidence showing that a statement with reference thereto would have been accepted if he had so explained. In order to understand more fully the rulings and actions of the trial court, it is proper to state that the Texas & Pacific Railway Company and this appellant, the Missouri Pacific Railway Company, were both represented in the trial of the case below by the same attorney. The Missouri Pacific Railway Company received the cattle at Wichita, Kan., for transportation to Hale, after the cattle had been fed, watered, and rested, and no demand was then made for the freight, or if anything was said about the freight the record shows nothing of it. At the request of the Texas & Pacific Railway Company and the Missouri Pacific Railway Company, the court gave the following charge: “The law gives a carrier of live stock a lien for its charges for handling such shipment where such charges have not been paid, and it has the right to hold the shipment, using due care for the same until the freight charges are paid or arrangements satisfactory to it made for the payment at destination or elsewhere.” The charge requested and refused asked the court to instruct the jury that the appellant had no notice of the arrangement to pay the freight. We think the court correctly refused this charge. This was a through interstate shipment, and appellant, under that law, was bound by the contract made by the initial carrier. It accepted the cattle at Wichita, Kan., and made no question as to the freight and carried the cattle on through a division point at Conway Springs, and did not demand freight, and not until the station of Sedan was reached was a demand made. There certainly were facts from which a jury could have found that appellant had notice of the arrangement. The law made the initial carrier appellant’s agent, and the evidence is undisputed that such carrier had notice of such arrangements and in fact made them. Atlantic C. L. R. Co. v. Riverside Mills, 219 U. S. 1S6, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7. The charge requested makes the shipper’s failure to communicate the arrangement as to the freight to- the agent at Sedan grounds for defeating a recovery for the delay at that point, regardless of any negligence on the part of appellant in a failure to notify its employés of such arrangement. The charge, for that reason, we think was properly refused. Railway Co. v. Chittim, 24 Tex. Civ. App. 599, 60 S. W. 284. We think the court in giving the specially requested instruction above set out went as far as appellant could reasonably require.

This demand for freight appears to have been made at an intermediate station, and with a purpose not to carry the cattle on to destination without the payment of the freight. We think the jury could have found that appellant was not using due care or ordinary care in so holding the cattle at that time and place. We understand that a railroad can hold a shipment until the freight charges are paid, but we do not think that such demand should be made at any point along the route, especially with perishable property when it is liable to suffer loss and injury. The mere fact that the shipper did not notify the station agent of the arrangement to pay the freight would not relieve the appellant from damage caused by an unseasonable demand or failure to use due care in holding the cattle, especially when there is no testimony that, if the agent had been so notified by the shipper, the cattle would have been permitted to proceed on the journey.

The tenth, eleventh, and twelfth assignments complain of the action of the court in refusing to give charge No. 1, and in giving charge No. 2 of the Kansas City, Mexico & Orient Railway Company, because the jury must have considered damages to the cattle by rerouting through Wichita, Kan., instead of by Milton, and must have assessed such damages against appellant. The court, at the request of appellant, gave special charge No. 3,-which in fact instructed the jury that appellant could receive the cattle at another point than Milton, and, if it advised the delivering carrier that it could not receive the cattle at Milton, the jury could not find against appellant for such extra hauling that may have been so occasioned. He also instructed the jury, at the request of the Orient Railway Company, that it could not be made liable by reason of such extra haul, and the failure to deliver at Milton. In effect, the two charges given peremptorily instructed the jury that the appellee could not recover anything for the failure to receive the cattle at Milton by appellant or the failure to deliver the same at that point by the Orient road or for the extra haul by Wichita, Kan. The jury could not have misunderstood the court upon that point. The requested charge would have added nothing more to the charge as given. The Kansas City, Mexico & Orient Railway Company has sought to appeal from the judgment against it by a pauper’s oath in lieu of an appeal bond. It is suggested by appellee Cheek that this court is without jurisdiction, in that said road has not complied with the law. The district court of Foard county convened on the 28th day of October, 1912, and adjourned on the 9th day of November, 1912. The appellant, the Missouri Pacific Railway Company, duly executed and filed its appeal bond, properly describing the judgment rendered against it, and against the Kansas City, Mexico & Orient Railway Company and made the same payable to J. F. Cheek, plaintiff, the Texas & Pacific Railway Company, the Kansas City, Mexico & Orient Railway Company of Texas and the Kansas City, Mexico Railway. The instrument or affidavit upon which the Kansas City, Mexico & Orient Railway Company seeks to appeal from the judgment to this court is as follows:

“J. F. Cheek v. Texas & Pacific Railway Company et al. No.-. In District Court of Foard County, Texas. Comes now the defendant, Kansas City, Mexico & Orient Railway Company, in the above entitled and numbered cause, and respectfully represents that in accordance with notice heretofore legally given in this behalf, it desires to perfect an appeal from the judgment heretofore rendered against it in this court on the 28th day of October, A. D. 1912, in favor of plaintiff for the sum of $365.70, interest and costs, to the Court of Civil Appeals of the State of Texas for the Seventh Supreme Judicial District at Amarillo, but that it is unable to pay the costs of said appeal or any part thereof, or to give security therefor. L. W. Allred, Attorney for Said Defendant.

“State of Missouri, County of Jackson. Before me, the undersigned authority, on this day personally appeared Neil S. Doran, to me well known, who being by me duly sworn deposes and on his oath doth say: That the defendant, Kansas City, Mexico & Orient Railway Company, above named, is a private corporation, duly organized and existing under the laws of the state of Kansas arid that affiant is its duly elected and qualified secretary, and as such duly authorized by said corporation to make this affidavit in its behalf. That the facts stated in the above and foregoing plea are true within affiant’s own knowledge and belief. Neil S. Doran.

“Subscribed and sworn to before me, this the 3d day of Dee., A. D. 1912. Cary S. Denny, Notary Public. [Seal.]’’

It will be noted this affidavit was made before a notary public in Jackson county, Mo. There is no certificate of the county judge or the judge trying the same showing that proof of inability to pay the costs was made before either. This affidavit, it is needless to say, does not in any particular comply with the provisions of the statute. Article 2098, R. S. 1911; Bargna v. Bargna, 123 S. W. 1143; Dixon v. Lynn, 154 S. W. 656, and authorities cited. The appeal not having been perfected as required by the statute, this court has no jurisdiction of the Kansas City, Mexico & Orient Railway Company’s appeal.

It therefore remains for us to determine whether we may properly consider the appellant’s assignments of error. We have concluded we cannot do so. Rule 101 for district courts (142 S. W. xxiv) does not permit cross-assignments against a coappellee, but only against the appellant. The assignments made would not be sufficient to have the judgment reversed against the railway company. The Kansas City, Mexico & Orient has not appealed from the judgment against it; and, in order to entitle it to appeal from the judgment rendered against it, it must give an appeal bond or make the proper affidavit in lieu thereof. Horter v. Herndon, 12 Tex. Civ. App. 637, 35 S. W. 80; Railway Co. v. Skinner, 4 Tex. Civ. App. 661, 23 S. W. 1001. This road having failed to comply with reference to making an affidavit is before this court only as an appellee, and, as appellee, it cannot cross-assign errors against its coappellee, it must and should therefore be treated as not complaining of the judgment against it. Gillespie v. Crawford, 42 S. W. on rehearing, p. 625, and authorities cited. But, should we consider the assignments of this road, we are unable to find from an inspection thereof any material error, such as injured the rights of the road, and which would require a reversal.

The charge given by the court at the request of the Missouri Pacific Railway Company, in which the jury were directed to find no damage against that road in failing to receive the cattle at Milton, Kan., with reference to the shipment to Wichita, because of the lack of facilities to feed, water, and rest at Milton, and to reach their destination within the time limit and in which the jury were instructed to find for the Missouri Pacific Railway Company any loss by reason of reshipping them to Wichita, did not injure the Kansas City, Mexico & Orient Railway Company, especially as the court charged the jury that they could find nothing against this road for loss or injury resulting from the failure of the Missouri Pacific Railway Company to receive the cattle at (Milton, and the failure of this road to deliver the cattle to its connecting carrier at Milton. It certainly was not injured in this particular. Of course, if in the voyage from Milton to Wichita the cattle were injured through the negligence of this road while en route, it was not by the charge requested and given by the court in its favor relieved of its duty to transport the cattle with ordinary care and within a reasonable time. Having assumed to carry the cattle from Milton to Wichita, it again assumed the duties of a common carrier with reference thereto, and would not be relieved from acts of negligence on its part causing loss in the course of such voyage. There is sufficient evidence to show the cattle were strong enough to make the trip within the usual and ordinary time and by the use of ordinary care, without inflicting the loss sustained by the shipment. The jury had testimony sufficient upon which to base the verdict found against the road and for the amount found against it. All assignments by this road, if properly before us, would be overruled.

Upon an inspection of the case, we think the trial court has carefully tried the case, and, if any errors of a material nature have been committed, they have been against ap-pellee Cheek.

Finding no reversible error, we affirm the judgment of the trial court.