author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BURNETT.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 29, 1913.
    On Rehearing Jan. 10, 1914.)
    1. Railroads (§ 351) — Crossing Accident-Instructions. .
    In an action for damage to property from a crossing accident, an instruction to find for plaintiff if defendant negligently permitted cars to' be placed so as to obstruct plaintiff’s view of the approaching train, and if defendant’s negligence in running the train at an unlawful speed and in so placing the cars was the proximate cause of the injury, was not open to the objection that it permitted the jury to find negligence solely on the ground of the location of the ears.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dee. Dig. § 351.]
    2. Trial (§ 192) — Crossing Accident — Instructions — Evidence.
    Where, in an action for damages to a horse and a wagon from being struck at a crossing by a train running at an unlawful speed, the undisputed evidence showed that certain of defendant’s cars were standing on a side track near the crossing, an instruction which assumed that the cars were so located was not erroneous as upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    3. Trial (§ 260) — Crossing Accident — Refusal op Instruction Covered.
    Where, in an action for the killing of a horse and demolishing of a wagon from being struck at a crossing by a train running at an unlawful speed, the court instructed that the presence of cars, which were near the crossing and obstructed the view, was only a circumstance bearing upon defendant’s negligent operation of the train, a requested instruction that the jury could not consider the presence of the cars as an independent ground of negligence was improperly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Trial (§ 320*) — Verdict—Submission of Forms.
    It was not error to furnish the jury with a form of verdict for plaintiff, where they were also furnished with a form of verdict in case of a finding for defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 757; Dec. Dig. § 320.]
    Appeal from Hunt County Court; Geo. B. Hall, Judge.
    Action by G. L. Burnett against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. S. Coke, of Dallas, and Dinsmore, McMahon & Dinsmore, of Greenville, for appellant. Clark & Leddy, of Greenville, for appellee.

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

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

   RASBURY, J.

Appellant’s road at a point in Greenville runs east and west and on its way crosses King street, a public highway, which runs north and south. South of the railroad and west of King street is a seed-house and gin, said structures being 55 feet south of the railway. At a point east of King street and on the south side of its track appellant has built, for the accommodation of the owners of the gin, a switch, which extends west and across and beyond King street until it reaches the gin. At the time laid in the petition in this case, while ap-pellee’s driver, C. T. Wood, was crossing, or about to go upon, the tracks of appellant he was struck by appellant’s train, and appellee’s horse killed and his wagon demolished. (Wood was himself injured and recovered damages therefor. M. K. & T. Ry. Co. v. Wood, 155 S. W. 1187.) Appellee thereafter sued for $295, alleging the accident to be the result of the negligence of appellant in failing to sound the train whistle, failing to ring the train bell, running the train in excess of statutory permission and in permitting box cars to be upon the gin switch, which obstructed the view of approaching trains by travelers. Appellant met the charges of negligence by general denial, charge of contributory negligence on the part of ap-pellee, and that any cars left upon its switch track were for the use of the owners of the gin and properly placed thereon. Upon trial by jury there was verdict for appellee for $84, followed by judgment, from which appeal is taken.

Upon the undisputed facts and in deference to the verdict of the jury upon those that were in dispute, the evidence shows, in substance, that by ordinance it was unlawful to propel cars through Greenville at a speed of more than six miles an hour, or to fail to ring the train bell while the train was moving through the city limits; that appellant was running its train at the time of the accident at a speed in violation of the ordinance and was not ringing its bell; that there was one or two box cars on the switch or spur track, a few feet west of King street in the direction of the gin at the time of the accident, the end of one of the cars projecting in the street proper, which obscured the vision of appellee’s driver of the approaching train.

Under the first assignment of error the only proposition asserted is that, under the pleading and evidence, it was error to submit to the jury, as an independent ground of negligence, the presence of the cars upon the switch track. The charge complained of is as follows: “Or, if you believe that the locomotive approached said street at a rate of speed greater than six miles an hour, and if you believe that defendant permitted cars to be placed and remain standing on defendant’s switch track immediately west of King street crossing, and that defendant was negligent in so placing and permitting such cars to be placed and remain where they were at the time of the injuries complained of by plaintiff, * * * and if you further believe that the negligence, if any, of the defendant in * * * running at an unlawful rate of speed and in placing and permitting the cars to be where they were at the time of the injury, as hereinabove submitted to you, was the proximate cause of the injury, you will find for the plaintiff.” The quoted charge, in our opinion, comes well within the rule controlling the extent to which juries may consider the presence of obstructions upon the carriers’ right of way or railroad tracks near street crossing in order to determine whether there was negligence in the operation of its trains, and did not, in our opinion, permit the jury to find negligence solely on the ground that the cars were upon the switch. M., K. & T. Ry. Go. v. Rogers, 91 Tex. 62, 40 S. W. 956; I. & G. N. Ry. Co. v. Knight, 91 Tex. 600, 45 S. W. 556.

Appellant’s second assignment of error complains of the following charge: “You are instructed that railway companies have a right to place box cars on side tracks and switches at such times and places as are reasonably necessary in the proper conducting of its business, and to permit such cars to so remain such length of time as is reasonably necessary in the dispatch of its business. If you believe it was necessary in the operation of said railroad for it to permit box cars to remain on its spur track south of King street, as they were placed, and that such cars only remained in such position, if they did, no longer than was necessary, then you cannot find that defendant was negligent in so placing said cars.” The criticism of the charge is that it is upon the weight of the evidence. As we have said before, it was undisputed on trial of the case that the ear projected into King street, which was a public highway, and hence the reference to that fact in the charge was not error. In addition, the testimony tended to show that the car was unloaded before the accident, and was presumably parked on the switch, and not being utilized by appellant at the time for any purpose connected with its business. There was also testimony tending to show that the two cars were being loaded by the appellant with cotton seed. Thus it may be said that the evidence fairly raised the issue of obstructing a public highway. The charge then was not error, since it told the jury that they could not find against appellant if the cars, as placed, were necessary and reasonable in transacting its business by appellant, and! since the presence of the cars was undisputed, leaving solely for the determination of the jury the exact issue submitted.

The third assignment complains of the refusal of the court to instruct the jury to not consider the presence of the box cars upon the switch track as an independent ground of negligence. There was no error in refusing this charge. The court controlled! the matter in his main charge, when he told the jury they could consider the presence of the ears upon the switch only as a circumstance bearing upon the alleged negligence of appellant in the operation of its train at said crossing.

We overrule the fourth assignment of error, which complains of the action of the court in furnishing the jury the form of verdict in case of a finding for appellee. In this connection the jury were also furnished a form of verdict in case of a finding for appellant.

The fifth assignment of error complains of the refusal of the court to give to the jury appellant’s special charge No. 1, defining contributory negligence. This issue was disposed of by us in the Wood Case, supra.

The judgment is affirmed.

On Rehearing.

In our opinion in this ease, in discussing the court’s charge, complained of by appellant by its second assignment of error, we made the statement that it was undisputed on trial that one of the box cars standing on the side tracks and alleged to have obscured appellee’s driver’s view of the approaching train “projected into King street.” The statement is incorrect, and not necessary nor intended to uphold the correctness of the court’s charge. The driver did, however, testify that the end of one of the cars-projected into the street proper. What we-intended to say was that it was undisputed that the cars were standing upon the sidetrack, and it is only to the cars so standing-upon the side track that the charge refers. Nowhere in the charge does the court refer to any car projecting into King street. That the statement was not intended in support, of our ruling is made clear by our opinion. There we say that the court’s reference in his charge to the cars was not error, since the only reference to any cars in the charge complained of is the cars standing on the-switch which is an undisputed and admitted fact.

We have examined the other assignments in the motion for rehearing, and conclude they are not well taken. Accordingly the motion is overruled.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    RUSHING et al. v. CITIZENS’ NAT. BANK OF PLAINVIEW et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Mobtgages (§ 480) — Foeeclosube — Vee-dict — Effect.
    Where the cross-complainant claimed land-under conveyances made to him by his codefend-ants subsequent to the execution of a deed of trust, a finding that the deed of trust should be-foreclosed necessarily negatived all claims asserted by defendant, and authorized the judgment-of foreclosure.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1399; Dec. Dig. § 480.]
    2. Mobtgages (§ 151) — Descbiption—Suffi-CIENCY.
    Where a deed of trust described the property as 160 acres known as the J. H. B. homestead survey, that description was not so vague-as to render the deed of trust invalid as against one not a bona fide purchaser.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336;. Dec. Dig. § 151.].
    3. Appeal and Eeeoe (§ 736) — Assignments-oe Eeeoe — Sufficiency.
    In an action on notes, where it appeared that defendants at first executed a note for $10,-000, and later, desiring an extension agreed to split the debt by executing one note for $8,000- and another for $2,000, plus accrued interest, an assignment of error to the effect that the verdict and judgment for the sum of $8,000 was-erroneous because the evidence showed that such sum could not be recovered on the $10,000 note which had been superseded, and that it could not be recovered on the $8,000 note because the-note was not completed by the signature of all of the defendants, was multifarious.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. §- 736.]

      4. Novation (§ 4) — Payments (§ 67) — Notes —Presumptions.
    Where notes are taken for a precedent debt, it will not be presumed that they are taken as payment or as a novation, and the burden is on the party asserting it.
    [Ed. Note. — For other cases, see Novation, Cent. Dig. § 4; Dec. Dig. § 4; Payment, Cent. Dig. §§ 162, 189-194, 198; Dec. Dig. § 67.]
    6.Bills and Notes (§ 430) — Renewal Notes —Effect.
    Defendants jointly executed a note for $10,-000, and some of them, desiring an extension, agreed to split the debt by executing two notes, one for $8,000, to be executed by three of the defendants, and the other for $2,000 and accrued interest. The $8,000 note was executed by only two of the defendants, but it and the lesser note were accepted by the creditor bank, which also retained the $10,000 note. Held, that the giving of the two renewal notes did not discharge the original note for $10,000, and hence a recovery could be had on it as well as the note for $2,000, which was executed according to the agreement; for a renewal note is never considered as discharging an old one when to do so would mean the loss of the debt and security.
    LEd. Note. — For other cases, see Bills and Notes. Cent. Dig. §§ 1251-1256; Dec. Dig. § 430.]
    6. Estoppel (§ 78) — Equitable Estoppbi>-What Constitutes.
    A bank to which the several defendants were indebted on a $10,000 note agreed to extend the time of payment upon their executing two notes, one for $8,000 and the other for $2,000, plus accrued interest. The $8,000 note was not signed by all of the defendants according to the agreement, but the bank accepted it and extended the time. Held, that an attempt to collect the $2,000 note did not estop the bank to assert its right to collect $8,000 under the old $10,000 note, which it had not canceled.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.]
    7. Estoppel (§ 78) — Equitable Estoppel— What Constitutes.
    A note is not considered as paid and discharged by another given for it, where the debt would by such construction be lost, because then the intention to receive the second as a discharge would be prima facie rebutted, and hence, where a bank to which defendants were indebted on a $10,000 note discounted that note in New York, and later accepted two notes, one for $8,000 and the other for $2,000, plus accrued interest, and discounted the renewal notes at another point, that conduct does not estop the bank from recovering on the original note; the $8,000 note not having been signed by all of the parties.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.]
    8. Usury (§ 117) — Actions—Evidence—Sufficiency.
    In an action on a note wherein defendants set up usury, evidence held sufficient to support a finding that the usury occurred in previous transactions, which had been settled by the execution of the note in question.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 328-340; Dec. Dig. § 117.]
    9. Usury (§ 66) — Effect—New Security.
    When a usurious obligation is settled and abandoned to a new security taken for a debt lawfully due, such new security rests upon a consideration purged of usury, and is valid.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. § 139; Dec. Dig. § 66.] '
    10. Bills and Notes (§ 493) — Usury (§ 113) —Burden of Proof.
    In an action on notes, where defendants set up usury and want of consideration, the burden of proving those defenses is upon defendants.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. § 493; Usury, Cent. Dig. §§ 308-323; Dec. Dig. § 013.]
    11. Evidence (§ 462) — Delivery—Evidence.
    Where a deed of trust in favor of a bank is
    delivered to one of its officers, defendants claiming that it was to be held by him and never delivered, parol evidence is admissible to explain the purpose of depositing the instrument.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2134-2139; Dec. Dig. § 462.]
    12. Deeds (§ 58) — Delivery—What Constitutes.
    The_ mere placing of a deed, in which a corporation is named as grantee, in the custody of one of its officers, is not a delivery; the question of a delivery being one of intention.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 130-135; Dec. Dig. § 58.]
    13. Mortgages (§ 69) — Officers—Duties.
    Where the directors of a bank required defendants, who were indebted to the institution, to give security, an agreement whereby the bank’s vice president should accept deed of trust on defendants’ property, but not deliver it to the bank, merely having it as ostensible security to satisfy the directors, is invalid, and the vice president will be treated as accepting the deed for the benefit of the bank, not being allowed to violate his duty to his principal.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 166; Dec. Dig. § 69.]
    14. Mortgages (§ 69) — Delivery—Estoppel to Deny.
    Where defendants, who were indebted to a bank, executed a deed of trust to secure their indebtedness, in compliance with a demand of the directors of the bank for security, but agreed with the vice president that he should retain the deed and never deliver it to the bank, they are estopped from setting up their fraudulent agreement, and the court may properly treat the deed as delivered.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 166; Dee. Dig. § 69.]
    15. Appeal and Error (§ 728)— Assignments of Error — Briefs.
    An assignment of error not correctly copied in the brief will be disregarded.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.]
    16. Appeal and Error (§ 742) — Assignments of Error — Statements.
    Assignments of error, followed ’ by statements which are merely counsel’s version of what the record shows, will be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    17. Appeal and Error (§ 1056) — Review-Harmless Error.
    Under rule 62a for the Courts of Civil Appeals (149 S. W. x), providing that no judgment shall be reversed for an error of law unless the appellate court shall believe that the error probably caused the rendition of an improper judgment, the improper exclusion of opinion testimony of defendant’s principal witness will be deemed harmless, where his testimony as to many other matters was disregarded by the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.]

      18. Appeal and Ekbok (§ 882) — Review-Estoppel to Allege Ekbok.
    The erroneous admission of evidence is not reversible error, where appellants elicited the same facts from the same witness.
    [Ed. Note. — For other cases, see Appeal and Erroih Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    19. Bills and Notes (§§ 110, 534) — Attorney's Fee — Contract.
    A stipulation in a note for 10 per cent, attorney’s fee is valid, and will be enforced when the note is collected by suit without a showing of the amount paid by the holder to his attorney.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 221, 1946, 1947; Dec. Dig. §| 110, 534.]
    20. Banks and Banking (§ 270) — National
    Ban kr — Usury— Statutes .
    Under Rev. St. U. S. § 5198 (U. S. Comp. St. 1901, p. 3493), providing that in case a usurious rate of interest has been paid, the person by whom it has been paid, or his representatives, may recover it back by an action for that purpose, payments of usury cannot be offset in a suit by a national bank on other indebted-i ness.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1023-1053; Dec. Dig. § 270.]
    21. Bills and Notes (§ 477) — Defenses—
    Counterclaim.
    In an action on notes, an answer alleging that defendants had an opportunity to sell the land which they deeded in trust to secure the notes, but that the vice president of the creditor bank induced them not to sell, but to accept a loan upon the land to their damage, is properly stricken, not setting forth any counterclaim; there being no allegation of fraud, duress, or oppression.
    [Ed. Note. — For other cases, see Bills and Notes. Cent. Dig. §§ 1524, 1525, 1558; Dec. Dig. § 477.]
    Appeal from District Court, Hale County; L. S. Kinder, Judge.
    Action by the Citizens’ National Bank of Plainview against J. J. Rushing and others, who impleaded J. B. Posey. From a judgment for plaintiff and the impleaded defendant, defendants appeal.
    Affirmed.
    See, also, 160 S. W. 337.
    Madden, Trulove & Kimbrough, of Amarillo, and Graham & Graham and Fred. C. Pearce, all of Plainview, for appellants. Dalton & Russell and Mathes & Williams, all of Plainview, Turner & Wharton, of Amarillo, and W. D. Benson, of Lubbock, for appel-lees.

      For other eases 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

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

   HALL, J.

This action was brought in the district court of Piale county, by the Citizens’ National Bank of Plainview, against J. j. Rushing, W. B. Rushing, and B. E. Rushing, as individuals and as composing the lirm the Rushing Land Company, and also against J. E. Rushing and E. B. Hughes. The last-named defendant, being trustee in two deeds of trust, disclaimed. The Rushings implead-ed J. B. Posey, the first vice president of the appellee bank, and by cross-action sought to recover the damages against' him and appel-lee bank.

The first amended original petition, upon which the case was tried, alleged, in substance that on June 1, 1910, the defendants J. J., W. B., and B. E. Rushing executed and delivered to plaintiff bank their note for $10,000, bearing 10 per cent, interest per an-num from maturity, stipulating for 10 per cent, attorney’s fees, secured by a mortgage on certain real estate, executed by J. J., W. B., and B. E. Rushing, and naming defendant Hughes as trustee; that about November 1, 1910, an agreement was made dividing the debt into two parts of $8,000 and $2,000 respectively, in which sums new notes were to be executed. It was further agreed that the $8,000 note should be signed by J. J., W. B., and B. E. Rushing, and the $2,000 note should be secured by deed of trust upon section 17, block W, Houston East & West Texas Railway Company lands, held by W. B. Rushing. It is further alleged that J. J. Rushing, who was the father of W. B. Rushing, B. E. Rushing, and J. E. Rushing, agreed to procure the signature of B. E. Rushing, who at that time was residing at Lubbock, Tex., to the $8,000 note. It is further alleged that the $8,000 note was never signed by B. E. Rushing; that instead of a note for $2,000 one for $2,755.30 was executed, made up of $2,000 of the $10,000 note, together with interest due at that time on the $10,000 note, interest on the $2,000 note, and another item of indebtedness due the bank by W. B. Rushing; that W. B. and J. J. Rushing executed said $2,755.30 note, which, as stated above, was secured by the deed of trust on said section 17; that because B. E. Rushing never executed the $8,000 note, it never became a valid and binding obligation; that the purpose of the agreement above mentioned in dividing the $10,000 note into two notes was to secure an extension of the indebtedness, and by the terms of the agreement $8,000 of said $10,000 note was extended for 180 days from November 1, 1910, and the remaining $2,000 plus the items above stated, making a total of $2,755.30, was extended to January 29,1911, and was subsequently, upon payment of interest thereon, extended to April 28, 1911. By the allegations in this amended petition, the plaintiff sought to recover of J. J. Rushing, W. B. Rushing, and B. E. Rushing, $8,000 and interest of the $10,000 note, and of J. J. and W. B. Rushing, $2,755.30 and interest thereon, together with attorney’s fees on both notes. Foreclosure was sought of the deed of trust dated June 1, 1910, given to secure the said $10,000 note, to the extent of $8,000 thereof, with interest and attorney’s fees and foreclosure of the deed of trust of November 22, 1910, on section 17 was also-sought, to secure the $2,755.30 note. The amended petition also alleged that J. E. Rushing was asserting some pretended claim of title to the lands, and alleged that his title, if any, was subsequent and subordinate to the deeds of trust, and asked foreclosure as to him. By their third amended original answer, the defendants demurred generally to plaintiff’s petition, and specially excepted to so much of the same as sets up plaintiff’s cause of action to be three notes, dated June 1, 1910, for $1,000, November 1, 1910, for $8,-000, and November 2, 1910, for $2,755.30, respectively, because the amended petition shows that the plaintiff does not claim an indebtedness on all of these notes. Special exception was urged to so much of the amended petition as declared upon the $10,000 note, because it appeared that the $8,000 note and the $2,755.30 note were executed in lieu of and for the purpose of superseding and canceling said $10,000 note. They further specially excepted to that part of the pleading which declared upon the $8,000 note, because it was to have been signed by the three makers of the $10,000 note, and had never in fact been signed by one of them, viz., B. E. Rushing. The question of usury was also raised by special exception. There was a general denial, and defendants specially' pleaded that the $2,755.30 note was without consideration, except to the extent of $281.-71, and as to this sum the note and the mortgage on section 17 constituted a real estate loan by a national bank, and were void; that plaintiff was not entitled to recover on the $S,000 note because it was to have been signed by the three makers of the $10,000 note, and that plaintiff, in violation of its agreement to do so, failed to procure the signature of B. E. Rushing thereto, and that B. E. Rushing was not bound upon the $8,-000 note because he had not signed the same. It is further alleged that the $10,000 note was without consideration in whole or in part, for the reason that it included usurious interest charges, and further that it was a part of a real estate loan transaction between plaintiff, a national bank, and defendants, and was therefore ultra vires and illegal. By their cross-action and plea in re-convention, the defendants sought to recover double the amount of usurious interest paid, and prayed in the alternative to have the amount of such usurious payments deducted from the note. There was a further cross-action by defendants against both the plaintiff and J. B. Posey for fraud and injury to them in their business. The pleading further alleges that J. E. Rushing, specially answering for himself, is the owner of the land referred to in plaintiff’s petition, same having been conveyed to him July 22, 1911, for a valuable consideration. Posey for himself, pleaded limitations, and plaintiff bank, by first supplemental petition, interposed special exceptions and general denial. The case was tried before a jury, resulting in a verdict for the plaintiff, as follows: “We; the jury, find for the plaintiff, against the defendants, J. J., W. B., and B. E. Rushing, the sum of $8,000, with 10 per cent interest from April 28, 1911, to date and 10 per cent, attorney’s fees on principal and interest, and further for the foreclosure of the deed of trust signed by the said Rushings, dated June 1, 1910. We further find for the plaintiff against W. B. and J. J. Rushing the amount of $2,755.30 note, less $74.03 usury, with 10 per cent, attorney’s fees on $2,681.27, and for the foreclosure of the deed of trust securing it, dated November 22, 1910. We, the jury, find foi the defendants as to the pleas of usury that in the $2,755.30 note there is $74.03 usury. We, the jury, as instructed by the court, find against the defendants on their plea for damages for loss of business” — and judgment was entered accordingly.

Appellant’s first assignment of error is that the court erred in rendering judgment against the defendant J. E. Rushing and his cross-action for canceling the deed of trust and quieting his title to the lands in controversy, because the verdict of the jury did not dispose of said cross-action, and does not support the judgment in this respect. The pleadings of J. E. Rushing raise no issue different from that raised by the pleadings of his codefendants. He sought the cancellation of the deed of trust upon the ground that it was not intended to take effect, and that it had been superseded by operation of law, and by reason of the transaction of November 22, 1910. The verdict of the jury, finding in favor of the validity of the deed of trust, was necessarily a finding against J. E. Rushing’s claim to the land.

In Jones v. Ford, 60 Tex. 127, Willie, Chief Justice, said: “This court has heretofore held that, where a finding of the jury under the issues submitted to them could not possibly have been arrived at without also finding another fact not expressed, but necessarily included, in the verdict, judgment could be rendered as if that fact had been positively found. * * * Under the pleadings in this case and the charge of the court, if Ford owed nothing for the construction of the houses upon the lots mentioned in the pleadings, he was entitled to recover them; any verdict of the jury, therefore, that negatived such indebtedness, and especially that found to be in his favor, including a finding that he was entitled to the possession of the property.” In the instant case,. J. E. Rushing claimed the land under certain conveyances made to him by his code-fendants, subsequent to the execution of the deed of trust. A finding that the deed of trust should be foreclosed necessarily negatived all claim asserted by him, and the judgment of the court declaring that fact was proper. Bownman v. Saigling, 111 S. W. 1082; O’Brien v. Hillburn, 22 Tex. 616; Brown v. Montgomery, 31 S. W. 1079; Deleshaw v. Edelen, 31 Tex.’ Civ.'App. 416, 72 S. W. 413; Bowles v. Belt, 159 S. W. 885. J. E. Rushing offered no evidence in support of his cross-action, which in effect constituted an abandonment thereof. Elmendorf v. Schuh, 62 S. W. 797; Beale’s Heirs v. Johnson, 45 Tes. Civ. App. 119, 99 S. W. 1045.

Under the second assignment of error appellants contend that the court erred in foreclosing the deed of trust lien on the J. H.Bell homestead survey, because the same was not sufficiently described in the instrument. The deed of trust described the property as follows: “160 acres known as the J. H. Bell homestead survey.” If this description was insufficient, it was rendered more specific by the description contained in the deed from B. E. Rushing to J. E. Rushing, which is as follows: “160 acres, the J. H. Bell homestead survey, Patent No. 394, vol. 29.” J. E. Rushing did not claim the land as an innocent purchaser, and, as between him and the bank, we think the description in the deed of trust was sufficient. Being sufficient as to the parties to it, and J. E. Rushing not being an innocent purchaser, he stood upon no more advantageous ground than did his father and brothers. Kelly v. Howard, 94 S. W. 379.

The third assignment of error is to the effect that the verdict and judgment for the sum of §8,000 are erroneous because the un-controverted evidence showed that $8,000 could not be recovered upon the $10,000 note, since the last-named note had been displaced, superseded, and substituted by two notes —one for the sum of $8,000, dated November I. 1910, and the other in the sum of $2,755.30, dated November 22, 1910; that the plaintiff had accepted and used the two substituted notes in lieu of said $10,000 note; that said sum could not be recovered on the $8,000 note against J. J., W. B., and B. E. Rushing, because the $8,000 note was never completed by the signature of B. E. Rushing; that he never agreed to be bound thereon, aiid because plaintiff pleaded that the $8,000 note never became a valid and binding obligation upon any of the defendants. This assignment is multifarious, and the propositions under it are not all germane to the assignment, and two of the propositions show that the printer has omitted parts of them.

The fourth assignment insists that the court erred in rendering judgment against B. E. Rushing for the sum of $8,000, because the verdict is without evidence to support it, and because the testimony showed that the $10,000 note, dated June 1, 1910, signed by J. J., W. B., and B. E. Rushing, was after-wards superseded, annulled, and substituted by two notes for $8,000 and $2,755.30, respectively, both notes being executed by J. J. and W. B. Rushing, and neither of them signed by B. E'. Rushing, and because there was a new consideration entering into the $2,755.30 note, and that the plaintiff accepted and used said two notes, in lieu of any substitution of said $10,000 note. This assignment is also multifarious, and is followed by two propositions, but will be discussed in connection with the third assignment, supra. In our opinion, appellants’ proposition is not sustained by the decisions of our Supreme Court. Plaintiff alleged that as the note for $10,000 was approaching maturity, the makers thereof requested an extension, and it was agreed that two notes should be given, one for $8,000 and the other for $2,-000, and that a deed of trust on section 17, block W, should be given as additional security for the $2,000 note, and that the remaining $8,000 due upon the $10,000 note should, as before, be secured by the first deed of trust, dated June 1, 1910, and that the new note for $8,000 should be signed by W. B., B. E., and J. J. Rushing. Plaintiff alleges that J. J. Rushing agreed to have B. E. Rushing sign the $8,000 note and the defendants allege that Posey undertook to procure his signature thereto. It is immaterial, who agreed to present the note to B. E. Rushing for his signature. Under the terms of the agreement, the $8,000 note was incomplete, and could not form the basis of an action against any one until it had been signed by B. E. Rushing. We think the plaintiff had the right to have B. E. Rushing’s name signed thereto before it could be held to have abandoned its rights under the $10,000 note, even if it had been agreed that the $10,000 note should be canceled and surrendered upon the execution and delivery of the $8,000 note — and the record shows no such agreement. The finding of the jury, in effect, is that the execution of the two notes in lieu of the $10,000 note was for the purpose of extending the time of payment of the debt evidenced by the $10,000 note. If’the $8,000 note had been signed by B. E. Rushing, and delivered (and the $10,000 note surrendered), then clearly the plaintiff’s right of action should have been based upon it, together with the $2,755.30 note. Since, in its incomplete condition, no action could be based upon it, in our opinion, plaintiff bank had the right to recover that amount of the debt by suit, based upon the $10,000 note, because the last-named note could not be superseded and annulled until the $8,000 note should become a valid and binding obligation. Eight thousand dollars of the debt, evidenced by the $10,000 note, was not in contemplation of law, nor under the agreement, renewed or extended until the execution and delivery of the note for $8,000. That this was not done was no fault of the plaintiff. The incomplete note for $8,000 was certainly not a payment of so much of the $10,000 note, nor could it be held to be a novation. If notes are taken for a precedent debt, it will not be presumed that they were taken as payment or as a novation, and the burden is on the party asserting it to prove his contention. Gimble & Sons v. King, 43 Tex. Oiv. App. 188, 95 S. W. 7; Scott v. Atchison, 36 Tex. 76. On the contrary, when the original note is retained by the creditor as in this case, it should be presumed that hq held it, or the renewals, as collateral and lie liad the right to sue upon either. Dan. Neg. Inst. (5th Ed.) 1266, 1266a, 1266c. The renewal note is never considered as discharging the old one when to do so would mean the loss oí the debt and security. Id. par. 1266b; Crumbaugh v. Kugler, 3 Ohio St. 544; Davis v. Thomas, 66 Neb. 26, 92 N. W. 187. It has been frequently held that a mere change of the evidence of the indebtedness does not affect the rights of the creditors. Porter v. Metcalf, 84 Tex. 468, 19 S. W. 696; Heath v. First National Bank, 19 Tex. Civ. App. 63, 46 S. TV. 123. When the $2,755.30 note had been executed and secured by a deed of trust upon section 17, block W, it changed the evidence of so much of the $10,000 indebtedness which had before then been evidenced by the $10,000 note, and had the effect of rendering the $10,000 note to that extent inoperative. And we think, further, that until the remainder of the debt, amounting to $8,000, had been evidenced by a valid note, executed in accordance with the agreement, it rested in and was evidenced by the $10,000 note, less the amount which had been merged in the $2,755.30 note. Moore v. . Thompson, 100 Ky. 231, 37 S. W. 1042; Willis v. Sanger, 15 Tex. Civ. App. 655, 40 S. W. 229.

In the last-cited case it is said: “The renewal of the notes by the mortgagor did not affect the security. Jones on Mort. § 355. No change in the form of the indebtedness, or in the mode or time of payment, will discharge the mortgage. A mortgage secures a debt and not the note or other evidence of it. No change in the form of the evidence or the mode or time of payment — nothing short of actual payment of the debt or an express release — will operate to discharge the mortgage. Id. § 924.”

In Wright v. Wooters, 46 Tex. 380, it is said: “Taking a new note with security, for a note secured by a mortgage, is not a waiver of the mortgage, unless expressly intended to have that effect. * * * The taking of a new note, with different sureties, did not of itself, unless so intended, operate as a release or waiver of a mortgage. The general rule is that a mortgage to secure a promissory note ‘will remain security for any new note given in payment of the former one, unless there is an intention to the contrary.’ ”

In Clarkson v. Graham, 21 Tex. Civ. App. 355, 52 S. W. 269, it was held that “where the holder of a note secured by a deed of trust surrenders the same, and releases the deed of trust, and takes a deed from the maker of the note to the property, and then reconveys it to him, taking vendor’s lien notes made up chiefly of what was then due on the original note surrendered, the holder of the original note does not by such transaction lose or forfeit, the right to fall back upon the lien of the released deed of trust in the event the vendor’s lien be declared of no effect, though the purpose of such transaction may have been to evade the homestead law.”

In our opinion the $2,755.30 note, having been executed in part performance of the original agreement, was a renewal of so much of the debt and was a proper basis for the plaintiff’s action, since it represented part of the original obligation. For us to hold that the failure of B. E. Rushing to sign the note for $8,000 intended to renew that much of the original indebtedness would deprive plaintiff of the right to recover either upon such note, or that amount of the $10,000 note would be in effect saying that the defendants could profit by their own wrong, and would open a door for fraud. B. E. Rushing-had never (so far as the record shows) agreed to the renewal and extension, and the bank had no means of forcing him ¡to do so. Plaintiff consented to it with' the express understanding that he should also sign the renewal note, and until this was done there could be no renewal as to all the makers, nor binding agreement to extend $8,000 of the indebtedness. The makers of the original note were all three principals, and we cannot subscribe to a doctrine which would permit two of them to induce their creditor to enter into another agreement which the third debtor could render fruitless by refusing to sign and at the same time annul the first obligation as to all of them. It was not contemplated that B. E. Rushing should sign the $2,755.30 note, and that part of the agreement has been executed by the delivery of the note upon the one part, and the extension of the time of payment of the whole debt for a period of 180 days upon the other. Appellants having received the benefit of the extension and by the payment of interest on the $2,755.30 note, and by reason of having asked and' received a further extension of the time of payment thereof, are es-topped from questioning the binding effect of such obligation. Appellants insist that the bank must stand by the transaction of November 22, 1910, in toto or repudiate it in whole; that it cannot take advantage of it in part and repudiate it in part, but if it wishes to go back to the $10,000 note and sue upon that, it must return the $8,000 note and the $2,755.30 note, and give up the mortgage on section 17, securing it, putting the parties back to just where they were before the transaction of November 22d. It would be impossible to put the parties in status quo because the defendants have already received the benefit of the extension of time of payment, and before the suit was filed. There is no question of rescission in it. ¡Plaintiff has accepted the contract in so far as defendants have performed it, and, instead of trying to rescind, is endeavoring by this suit to. enforce it, or so much thereof as the defendants have consented to make enforceable. We know of no rule of law, and appellants have cited, us to none, under which appellee’s effort to collect the $2,755.30 note against J. J. & W. B. Rushing would preclude or estop it from collecting the balance of the debt due it from them and B. E. Rushing, jointly and severally, by proceeding on the old note. We think the above-quoted authorities sustain us in this view; nor do we think the defendants who have neither paid nor offered to pay can be heard to complain so long as judgment is not rendered against them for more than the amount of their indebtedness. J. J. Rushing and W. B. Rushing did not execute the $2,755.30 note with any understanding that their liability should be predicated upon the execution of the $8,000 note by B. E. Rushing. Then what right have they to complain because the bank is seeking to recover a part of the debt for which they are jointly and severally liable, from B. E. Rushing, by suit upon the old notes? B. E. Rushing is in no way bound upon the $2,755.30 note, then why should he complain because the plaintiff bank is seeking to recover of J. J. and W. B. Rushing that part of the debt represented by it, and for which he was jointly and severally liable? It is our judgment that until he executes the $8,000 note with J. J. and W. B. Rushing, perfecting it as an obligation against all three, his liability to" plaintiff, as evidenced by the old note for $10,000, continues. The appellants insist that the act of the bank in sending the $10,000 note to New York, and the $8,000 note to St. Louis, and rediscounting them in banking transactions there, estops them from filing suit upon either of the notes, but we are not referred to any decision announcing such a rule; and we think the plaintiff’s action is nothing more than evidence tending to show the intention of the parties, and throwing light upon the effect of the renewals.

As said in Daniel on Negotiable Instruments (5th Ed.) § 1266b: “Even where a note is considered as paid and discharged by one given for it, as a general rule, the case is excepted where the debt would, by such construction, be lost, because then the intention to receive the second as a discharge would be prima facie rebutted. This view would apply where the first note is secured by mortgage.” This question, however, seems to be definitely settled against appellants by the verdict of the jury, the effect of their finding being that the partial execution of the $8,000 note was not intended to be a payment of so much of the debt as was still represented by the note for $10,000. What is here said also disposes of appellant’s fifth, sixth, seventh, and eighth assignments of error.

The ninth, tenth, and eleventh assignments of error raise the question of usury and the sufficiency of the court’s charge upon that issue, and will be considered together. Under the ninth assignment it is insisted that the evidence showed usury in the various items which were merged in the $10,-000 note by the transaction of June 10th. The verdict of the jury sustains the contention that usury exists in part as to the $2,755.30 note, and have found against appellants, otherwise upon the theory, we presume, that the transaction of June 10th settled and abandoned all usury in the various notes and overdrafts of the parties preceding that date.

The tenth assignment complains of the action of the court in refusing to give special charge No. 6, requested by the defendants, which is as follows: “You are charged that the law against usury is to be liberally applied to prevent usury openly charged or concealed in any disguise and device that may be resorted to, if any, either by the lender or borrower, or by the consent of both for putting a usurious transaction into a form which makes it appear to be free from usury, and must be disregarded and the transactions treated in accordance with its real nature and substance. If you believe, therefore, from the evidence, that the $10,-000 note, dated June 1, 1910, was made to include the balance of the indebtedness of J. J., W. B., and B. E. Rushing, and the Rushing Land Company, evidenced by their overdrafts and notes, after applying the payment of $4,740,- you will so treat the transaction, notwithstanding any different form, if any, which may have been given, or attempted to be given, it by the manner in which the papers may have been passed or the book entries made.”

The eleventh assignment complains that the court erred in the eighth paragraph of the general charge upon this issue. After submitting to the jury in the fourth, fifth, sixth, and seventh paragraphs of the general charge, the law of usury applied to the facts as alleged in the answer and cross-action of the defendants, the court proceeded in the eighth paragraph to charge the jury as follows: “You will therefore determine from the evidence whether the transaction of June, 1910, was for the purpose of making a new loan to pay off certain indebtedness of the defendants Rushing, including all the indebtedness owed by them to plaintiff, or whether it was simply a continuation of the old indebtedness, and intended so to be by the parties, then such transaction would not extinguish the usury, if any, existing in the prior indebtedness. But you are charged in this connection that if you find from the evidence there was usury in any of the notes or overdrafts existing at the time the transaction of June, 1910, was made, but that such transaction was intended, not as a continuation of the old indebtedness, but was a new indebtedness transaction, and that the proceeds of a part thereof of the note dated June 1, 1910, were used in the payment and extinguishment of all prior indebtedness to plaintiff, then you are charged that all such indebtedness so paid was purged of usury, if any existed, and would not taint or impair the new note for $10,000, dated June 1, 1910.”

Posey, the official of the bank, who represented it in this transaction, gives this version of it: “When that $10,000 note was signed Mr. Rushing and his son W. B. came into the bank, I think late in the afternoon of June 10th, and asked me for a memorandum of their various indebtedness to the bank, and I gave it to them, and they went out with it. The next morning Mr. Rushing came down and asked me to fix up a note for $10,000, and that he and his sons would sign it. He wanted it for six months, and I said, ‘Mr. Rushing, I cannot do that. The board of directors would not stand for it two minutes.’ Then the question of collateral came up, and he did not object to giving me collateral. The only question was he was so deeply in debt, he told me, if possible, that he was going to sell something in the course of a few days, and that he would rather not incumber any one else, only the land; that he had given a deed of trust on it to Mr. Heard for the $1,200 loan. Well, I objected to that, and I told him, ‘Mr. Rushing, you will have to give us something that is not incumbered, because the directors won’t stand for that on account of the deed of trust to Mr. Heard,’ and I suggested to him at the time that he give me a chattel mortgage on his personal property, what he had, and finish it up with a deed of trust or sort of second lien on this land, and I asked him if he did not have something else that was clear, and I think he said that he had a half section that was unincumbered, and when he brought up the question of recording it, it is my recollection that I told him, if he had any prospects of selling any of it within a short time, that I would hold up the recording of the deed of trust for a few days, and then he asked me to fix up the note. That was on June 11th, and he took the note out and had the boys sign it, and we settled it on that day — the day after I submitted that memorandum of indebtedness. I think it was a little later when the deed of trust was fixed up. When they came back I do not remember whether all three were present or not. It is my recollection that Mr. W. B. Rushing came down and gave me some data before the note was returned, and I do not remember whether they were all together, but I do know that the note was turned in, and we took a cheek that went to the credit of J. J. Rushing’s account. In regard to Mr. Rushing’s statement as to what his object and purpose in making the $10,000 note, dated June 1st, was, after he negotiated the loan with Mr. Heard, he did not get as much money as he expected. He wanted to borrow enough — get enough money, to pay off the bank, and I told him I believed I could find him a man that would loan him the money. Some time a little prior to June 1st he was considerably distressed about his business. He came to me and told me that he was not going to have as much money as he expected. It is my impression that he told me Mr. Heard was holding up a little of his money. Any way he was going to need about $10,000. He said he wanted to pay what he owed the bank, and he owed some outside debts that he wanted to pay. I told him we' would help him on that, and that was about all that was said until Mr. Rushing came down on June 10th and got this memoranda, and then on the morning of the 11th he came into the bank and got the note fixed up. He said he thought he was going to need about $10,000, and I told him, if he did not go past that, that we could accommodate him, and when the loan was procured it was placed to the credit of J. J. Rushing. I did it on his instructions, of course. If he had instructed me differently, I would have so handled it. I always tried to please him.”

The record further discloses as a part of that transaction that the money was all placed to the credit of J. J. Rushing, the father of W. B., B. E., and J. E. Rushing, and that he gave the cheeks for the various amounts payable to the other parties, W. B., and B. E. Rushing, and the Rushing Land Company, sufficient to cover their various items of indebtedness to the bank, and leave on deposit a balance to the credit of each of them, except B. E. Rushing; that there was on June 11th placed to the credit of J. J. Rushing $9,500, being the amount of the $10,000 note, less the $500 interest, and there was also placed to his credit Et. Worth exchange for $4,740, being the amount of the loan from Heard. The check to W. B. Rushing, given by him, was for $4,060.43, which paid his indebtedness to the bank and left him a balance on deposit of $100. To B. E. Rushing a checks was given for $201.65 to pay his overdraft to the bank. The check to the Rushing Land Company was for $3,008, which paid its overdrafts and a note for $750i, due the bank, leaving a balance to its credit of $200. After giving of all the checks, J. J. Rushing had a balance to his credit of $374.-02. The contention on the part of the defendants is that this transaction of June 10th and 11th out of which the $10,000 note arose, and which by agreement was dated June 1st, was simply a renewal of former indebtedness,- and that the usury in the overdrafts and old notes which had been merged in the $10,000 note tainted to that extent the renewal note. It se.ems that the jury adopted the appellee’s version of the transaction as related by Posey, and his evidence is sufficient to support the verdict.

It is the law as announced in 39 Cyc. 1004: “When a usurious obligation is settled and abandoned and a new security taken for the debt lawfully due, with lawful interest thereon, such new security rests upon a consideration purged of usury, and is valid. The fact that the lender by such settlement retains tie usury already paid will not taint the new contract.” Stout v. Bank, 69 Tex. 384, 8 S. W. 808.

The transaction of June 11th resulted in a note signed by J. J. Rushing and his two sons, W. B. and B. E. Rushing. As a result of the execution of this note, J. J. Rushing was enabled to discharge the various items of indebtedness evidenced by overdrafts and notes of himself, his sons, and the Rushing Land Company. The objection urged by appellant in the third proposition under the tenth assignment to the eighth paragraph of the general charge is that the court instructed the jury that “the test to be applied to the transaction was the intention of the parties” is not sound. The court did not instruct the jury at all as to the intention of the parties to charge or contract for usury, but submitted the question as to whether the execution of the new note was a separate transaction, or was merely intended to be a continuation of the old indebtedness. These assignments are overruled.

The twelfth assignment is: “The court erred in giving to the jury the second charge, reading as follows, to wit: ‘In this case'the burden of proof was upon the defendants to establish the allegations in their answer by a preponderance of the evidence.” The general rule is that the burden of proof rests upon the party who has the affirmative of any particular issues, unless expressly assumed by the other party. Ry. Co. v. Cows-er, 57 Tex. 293; Howell v. Hanrick, 88 Tex. 383, 29 S. W. 762, 30 S. W. 856, 31 S._W. 611. The appellants’ answer and cross-action consisted of a plea of no consideration, or failure of consideration, for the $2,755.30 note, except as to $281.27, alleging all over-plus to be usury; denial on behalf of B. E. Rushing of the execution of the $8,000 note; setting up specifically the usury in the note for $10,000; and by cross-action sought to recover upon the ground of usury; a denial that W. B. and B. E. Rushing ever delivered the deed of trust of June 1, 1910, to the bank, and alleging that Posey obtained it from them fraudulently. Paragraph 19 of the joint answer of the defendants was J. E. Rushings’ cross-action. The burden of proving the allegation when it is charged that usury has either been paid or is provided for in the contract rests upon the party alleging it. Cotton States Building Co. v. Peightal, 28 Tex. Civ. App. 575, 67 S. W. 524; Rutherford v. Smith, 28 Tex. 322. The burden was also upon the defendants to show a want of or failure of consideration for the notes sued upon. Masterson v. Heitmann, 38 Tex. Civ. App. 476, 87 S. W. 227; Gutta Percha & Rubber M’nfg. Co. v. Cleburne, 102 Tex. 36, 112 S. W. 1047. In Thompson v. Hines, 59 Tex. 527, it is said that if a deed is found in the grantee’s hands, a delivery and acceptance is always presumed, and this presumption would have the effect of throwing upon defendants the burden of proof in establishing that the delivery to Posey, as the officer of the bank particularly authorized to make loans, was not a delivery in fact to the bank. Defendants’ allegation that the $10,000 note had been discharged, like a plea of payment or release, was a plea in confession and avoidance. Marley v. McAnelly, 17 Tex. 658. The issue made by the pleadings of the parties as to who should procure the signature of B. E. Rushing to the $8,000 note is of no consequence and proof of the allegation that J. B. Posey obtained the deed of trust from defendants fraudulently certainly rested upon the latter. It cannot be contended that the burden of proving the facts set up in J. E. Rushing’s cross-action was not upon him. G., H. & S. A. Ry. Co. v. Herring, 102 Tex. 100, 113 S. W. 521; Pughe v. Coleman, 44 S. W. 576. Therefore the court did not err in the charge that the burden was upon the defendants to prove the facts in their answer.

We think the court was correct, and the 12th assignment is overruled.

Appellee, by repeated objections to the condition of appellant’s brief, insists that a number of the assignments should not be considered by this court, and objects to the thirteenth assignment because it is not in accordance with the rules, and not properly briefed. The assignment itself is multifarious, confusing, unintelligible in part, and is not a verbatim copy of the paragraph as set out in the motion for new trial. It is followed by three propositions. Under the first proposition for a statement we are referred to the first proposition under the ninth assignment. Reference to the first proposition under the ninth assignment shows 11 pages of badly printed matter, the greater part of which has no bearing on this proposition. The second proposition, which challenges the correctness of the tenth paragraph of the court’s charge, is followed by counsel’s version of what the record shows as to the evidence, and does not contain a copy of the paragraph of the charge, and says, “For further statement, see statement under second proposition under eighteenth assignment.” The statement under the third proposition is as follows: “See statement under second proposition, this assignment”; and, as we have seen, the statement under the second proposition is wholly insufficient. The references to the record are not sufficient under this assignment; only one statement containing any reference to any part of the record. The typesetting in the make-up of this brief is such that we are forced to hazard a guess at the meaning of much of the compositor’s work, but notwithstanding these defects, we have decided to consider this assignment, since it involves a vital question in the case.

The tenth paragraph of the charge is as follows: “You are charged that the execution of a deed of trust for the recited purpose of securing the indebtedness set out therein and the delivery to the grantee or to some one for the grantee’s benefit, is presumed to create a valid and binding lien on the property therein described to secure such indebtedness, and it devolves upon the party attacking such interest to show that it was never intended to take effect as a valid instrument, and you are therefore instructed to find for the plaintiff against the defendants J. J., W. B., and B. E. Rushing the sum of $8,000, with ten per cent, interest from June 1, 1911, to date, and 10 per cent, attorney’s fees on principal and interest, and, further, for the foreclosure of the deed of trust signed by the said Rushings, dated June 1, 1910, unless you find from the evidence that the deed of trust was executed and delivered to J. B. Posey under an agreement between Posey and the Rushings that he, Posey, would hold it personally'and would put it away among his private papers, and not make delivery to the plaintiff, the Citizens’ National Bank, or to be used or claimed as an effective or delivered instrument, in which event you will find for the defendants as to the foreclosure of the deed of trust.” It is insisted by appellants that this charge is upon the weight of the evidence. In Stook-bury v. Swan, 85 Tex. 563, 22 S. W. 966, it is held that any charge as to a presumption arising from a given state of facts set out in the charge is upon the weight of the evidence, unless it be in those cases where the law raises a conclusive presumption.

The question raised by this assignment, as well as by the eighteenth assignment, which we will dispose of together with this, is not one of escrow, because the instrument was not deposited with Posey to be ultimately delivered to the bank upon any condition at all, but the real issue is, Has the deed of trust been delivered to the bank? We think parol evidence is admissible to explain the purpose of depositing the instrument with Posey, and, if possible, to show whether the acts claimed by appellee as constituting delivery really have that effect. It has been held that a deed in which a corporation is named as grantee is not necessarily delivered to the corporation when placed in the custody of one of its officers. So. L. Ins. Co. v. Cole, 4 Pla. 359; 16 Cyc. 574. The issue of delivery or no delivery is a question of intention and one of fact, to be determined by the jury from the evidence (Brown v. Brown, 61 Tex. 56); and ordinarily, in order to render a deed effective, it must be delivered into the control of the grantee, with the intent of the grantor that it shall become operative as a conveyance. Steffian v. Miilmo National Bank, 69 Tex. 513, 6 S. W. 823; King v. Hill, 75 S. W. 550. Ordinarily the rule announced in these authorities would require a reversal of this case upon this issue. Posey denies that he took the instrument in question with any understanding whatever except such as might be implied from the execution and delivery of an instrument of this nature, containing no conditions limiting its effect. The Rush-ings testified that Posey took it agreeing to file it with his private papers, and that he would not deliver it to the bank or place it of record. It seems to have been given in response to a demand by the directors for some security to the $10,000 note. Admitting the version of the transaction given by the Rush- ’ ings to be true, then Posey, in accepting the instrument with any such understanding,' has violated the duty which he, as managing officer of the bank, owed to it. We cannot subscribe to any such transaction, and the delivery upon terms plainly illegal, and the acceptance of the instrument by Posey in violation of his duty, will be disregarded and the delivery of the deed held absolute. Posey cannot be permitted to violate his duty to his principal, if he so intended. 16 Cyc. 574; Devlin on Real Prop. (3d Ed.) vol. 1, § 316. The jury accepted Posey’s version of the transaction, which is that there was a simple and effective delivery of the deed. If we accept the Rushing statement as true, then they had delivered the instrument to Posey, with the fraudulent purpose of pacifying and deceiving the bank’s directors, who were demanding bona fide security for their debt. Having delivered it to Posey with a fraudulent intent and purpose, which we can neither respect nor recognize, the Rushings are estopped from claiming that the delivery is other than absolute, and as they intended the directors to take it, and as the directors did accept it. So, upon either theory, the court could not have erred in assuming outright that the deed of trust was delivered, and the error in the tenth paragraph is therefore harmless, and these remarks also dispose of the twenty-seventh, twenty-eighth, and twenty-ninth assignments.

Having heretofore considered the matters contended for by appellant under the fourteenth assignment, it is overruled.

The fifteenth assignment is not correctly copied in the brief, and is therefore disregarded. Hayes et al. v. Groesbeck et al., 146 S. W. 327; Bray v. The Bank, 145 S. W. 290.

The sixteenth assignment of error does not point out the error complained of, if any, in the charge, and the statements following the propositions are not sufficient to require its consideration.

The seventeenth and twenty-second assignments are in violation of the rules requiring references to the record. The statements following them are not statements of fact from the record, but are merely counsel’s version of what the record shows.

It is urged under the nineteenth assignment of error that the court erred in excluding the testimony of W. B. Rushing offered by these defendants, to the effect that “the papers passed and the book entries, made at the time the note for $10,000 offered in evidence was.given, were the proper papers to be passed and the proper entries to be made, according to the rules and practice and system of bookkeeping obtaining in banking institutions, to evidence a settlement by which the indebtedness of J. J., W. B., and B. E. Rushing and the Rushing Land Company were all consolidated and the payment of $4,740 made thereon and the balance carried forward and renewed in said note of $10,000, as shown by bill of exceptions No. 11, because said testimony was material and competent as expert opinion evidence, and was not subject to the objections mentioned in said bill of exceptions, which is here referred to as a part hereof.” The objection urged to this testimony was that it was a conclusion of the witness. If the court erred in this ruling, it was not such error as requires a reversal under rule 62a for the Courts of Civil Appeals (149 S. W. x), providing that no judgment shall be reversed on appeal, nor new trial ordered in any cause, on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Reference to this witness’ testimony shows that he was the principal witness for the appellants, and that in its scope his testimony covers all the material issues in the case. Since the jury found against the appellants, where this witness had testified positively to facts, we are inclined to believe that a mere expression of an opinion from him, if admitted, would have had little weight with it, and under the rule we overrule this assignment.

The twentieth assignment of error is predicated upon the action of the court in permitting the witness, Von Struve, to testify that it was usual and customary for all banks in Plainview to charge interest monthly at the rate of 12 per cent, per annum on overdrafts. This was objected to because the testimony was immaterial and irrelevant. We think this was error, but the qualification placed upon the bill by the learned trial judge shows that evidence of a similar nature was deduced by defendants from the same witness, and the assignment is overruled.

The twenty-first assignment is overruled upon the grounds stated by us in passing upon appellant’s third assignment.

The twenty-third assignment challenges the action of the court in rendering judgment for attorney’s fees, because there was no evidence that the plaintiff had ever employed attorneys and placed either the note sued on in their hands for collection, or that it had ever agreed to pay said attorneys anything for the collection of the notes, or for the bringing of this suit. Neither was there any evidence that the attorney’s fees stipulated for in the notes was reasonable compensation for such services. This question is decided adversely to appellant’s contention, in Bank v. Robinson, 104 Tex. 166, 135 S. W. 372.

The twenty-fourth assignment complains of the action of the court in sustaining plaintiff’s first special exception, to the effect that defendant’s answer is insufficient in so far as it seeks to recover certain usurious interest items theretofore paid by defendants to plaintiff. Reference to the exception itself shows that the assignment incorrectly states the effect. The exception was not to that portion of the answer which sought to recover usurious interest paid, but was to so much of the answer as endeavored to offset the bank’s claim by the amounts of usury alleged to have been paid. In a suit by a national bank to collect indebtedness due it evidenced by notes, the defendant cannot offset any amount already paid as usury against plaintiff’s demand. Rev. Stat. U. S. § 5198 (U. S. Comp. St. 1901, p. 3493); Huggins v. Bank, 6 Tex. Civ. App. 33, 24 S. W. 926; Trabue v. Cook, 124 S. W. 455; Haseltine v. Central National Bank, 183 U. S. 130, 22 Sup. Ct. 49, 46 L. Ed. 118.

Paragraph No. 6½ of appellee bank’s supplemental petition, excepting to all that part of the answer of the defendants which alleges that they had the opportunity to sell this land at about the price of $37.50 per acre, but J. B. Posey objected to such proposal, and urged defendants not to sell it, and that the defendants were induced to obtain the loan on said lands, was sustained by the court, and we think properly so. This ruling is the basis of appellant’s twenty-fifth assignment of error. The pleading does not show that Posey was guilty of any fraud, duress, oppression, or other improper act which could for the basis of appellant’s action. The allegation is that, contrary to defendant’s wishes, he persuaded them not to sell the land, and to accept a loan of $10,-000 upon it from his bank. Prom our own experience, we doubt if the allegation could have been sustained by the proof. If true, such generosity is so rarely met with in the reports of adjudicated cases and in the business walks of life that we are not willing to discourage such benevolence by holding that it comes within the condemnation of any known rule of law.

Finding no reversible error in the record, the judgment is affirmed.


author: LEVY, J.

text:
    TEXAS MIDLAND R. CO. v. GERON.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 17, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Master and Servant (§ 285) — Actions eor Injuries — Question eor Jury.
    In an action for injuries to a railway brakeman who stumbled over an obstruction as he was getting on a moving car, and thereby missed his foothold, evidence held to make a question for the jury as to whether the obstruction which caused him to stumble was a pile of cinders, as claimed by him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dee. Dig. § 285.*]
    2. Master and Servant (§ 226) — Liability eor Injuries — Assumption oe Risk.
    It is not technically true that an enqployé does not assume any risk of dangers arising from or caused by the employer’s negligence, where he actually knows or must necessarily become aware of the negligence in the usual and ordinary performance of his work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 659-667; Dec. Dig. § 226.]
    3. Trial (§ 252) — Master and Servant — Actions eor Injuries — Evidence and Instructions.
    In an action for injuries to a railway brakeman who stumbled over a pile of cinders as he was getting on a moving car and lost his foothold, evidence held insufficient to raise an issue as to whether he knew, or must have become aware, of the presence of the pile of cinders in the usual and ordinary performance of his work before he stumbled thereover.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    4. Appeal and Error (§ 1066) — Harmless Error — Instruction.
    In an action for injuries to a railway brakeman who stumbled over a pile of cinders as he was getting on a moving car, where there was no evidence that he knew, or must have become aware, of the presence of such cinders before he stumbled thereover, the error in charging that employés did not assume any risk of dangers arising from or caused by the employer’s negligence was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    5. Appeal and Error (§ 1066) — Harmless Error — Instruction. .
    Where the evidence made no issue as to assumed risk in an employe’s action for injuries, the error, if any, in failing to authorize the jury to consider the question of assumed risk was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Action by F. C. Geron against the Texas Midland Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The appellee, in the employ of appellant as a brakeman, sustained injuries while in the performance of his duties, for which he sues for damages. He alleges that his injuries were caused by the negligence of appellant in allowing cinders to be and remain near its track in such quantity and size as to create an obstruction dangerous to trainmen while engaged in their usual duties. The appellant answered by general denial, and specially pleaded assumed risk and contributory negligence. The cause was tried to a jury, and the verdict was in favor of the appellee. The evidence shows that* when the freight train going north to Paris reached the station of Quinlan, there were on the passing track, which lies east of and runs north and south with the main track, a stock car and three flat cars to the south of the stock car. The three flat cars were to be switched from the passing track over to the main track, to be put in the train, and the stock car was to be left on the passing track. The engine, headed north, with a water car behind it, were detached from the train line, and were switched over to the passing track, where the water car was coupled onto the stock car, which in turn was coupled to the “three flat cars. The engine with the water car, stock car, and three flat cars then moved north to the main track, and the three flat cars were kicked south on the main track. These three flat cars went several car lengths down the main track before they were stopped. In order to place the stock car back on the passing track, it was required that the engine move north until it passed the north switch, where the passing track connected with the main track, which was done; the switch was then thrown, and the stock car was kicked back on the passing track south, at a speed of six or eight miles per hour. It was the duty of appellee to get on the stock caí-as it came down the passing track, and set the brake and stop it when the car had reached the proper place. In order to perform this duty the appellee got off the north end of the north flat car on the main track, on which he was riding, while it was being kicked onto the main track, and started quickly east toward the passing track preparatory to getting on the moving and approaching stock car. The distance between the main track and the passing track at this point was about 10 feef At the moment ap-pellee reached the passing track the moving stock ear was by him, and he made a reach with his hands for the iron handholds on the car, and placed his hands on and caught the iron handhold, and attempted to put his left foot in the stirrup on the ear, when his foot suddenly caught under, or hit against an obstruction on the ground, which threw him entirely out of balance, and which caused him to miss his foothold and his body thereby to be extended the full length down the side of the car, while his feet touched and dragged on the ground against the ties, and in this position he was dragged until the strength of grip in his hands gave way, causing him to receive serious and permanent injuries. It appears that on the ground at the passing track there was a small pile of clinkers, or burnt and run together coal, consisting of about one dozen and a half clinkers, which had been shoveled out of one of appellant’s engines, extending the length of space of four or five feet, some of the clinkers being between 8 and 10 inches in thickness, some of medium size as? large as two hands, and some smaller. The facts and circumstances sufficiently warrant the finding, as involved in the verdict of the jury, that appellee’s foot as he prepared to mount to the stirrup came in contact with one of the large clinkers, causing him to stumble and lose his balance, and preventing him from mounting the car. It reasonably appears from the evidence that the clinkers had been lying on the ground for several days’ time, but which fact was unknown to appellee. It appears without dispute that high, green grass at the time covered and obscured the clinkers from view, and that appellee did not know of their existence there before injury. The evidence warrants the finding of facts that appellant was guilty of negligence in allowing clinkers to be and remain on or near its track as alleged, and that appellee was not guilty of contributory negligence, and was not precluded by assumed risk, and that the evidence warrants the amount of the verdict.
    Dashiell, Orumbaugh & Coon, of Terrell, Dinsmore, McMahan & Dinsmore, of Green-ville, and Henry C. Coke and S. W. Marshall, both of Dallas, for appellant. Moore & Har-dison, of Paris, for appellee.

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

   LEVY, J.

(after stating the facts as above).

The first assignment predicates error upon the refusal of the court to give a requested peremptory charge to return a verdict for appellant. The insistence for error is that there is a failure of any evidence to show that appellee’s injuries arose from coming in contact with and stumbling over clinkers as alleged. At the very time of his injuries, according to the evidence, appellee was engaged in switching the stock car onto the passing track. The brakeman, Blevins, and the engineer, Boyles, besides appellee, were the only witnesses testifying in the case that were present at the occurrence. The appellee testified, as material to the point considered, that: “I made a reach for the stock car and caught the irons in this position [illustrating], and attempted to put my foot in the stirrup on the stock car in order to go up and set the brake, when my foot hit an obstruction, which threw me out of balance, and I fell against the stock car in this position, with my head here and my feet nearly north. I held-my feet up as well as I could, to keep from getting hurt; and the next thing I knew one of my feet hit the ground, and the next thing I knew they were picking me up. That is all I know. I had an idea at the time I had struck — when I hit the obstacle with my foot, just the minute I struck it — I had an idea what it was. I did not see the obstacle before I came in contact with it.

I was watching the movement of the stock car coming towards me. * * * Just as I made a grab for the iron I lifted up my left foot to grab the stirrup, and hit this obstacle, and the thought struck me that I had hit a clinker, and that caused me to lose my hold. I cannot say how far it was after I hit the obstacle until my strength gave out and my foot hit the ground. * * * It had rained a little shower that morning, and the grab irons were wet. The ground was not slick there that I could see. The ground was sandy, and sandy land does not get slick. I did not see whatever obstacle it was that struck my foot after I felt my foot strike against it. I judge I was standing a couple of feet from the side of the car when I caught the handholds. You cannot grab a car if you are too close to it I would judge that was about the distance that would give me plenty of room to catch the car and plenty of foot room. The end of the cross-ties extend further out than the rails, but hardly, I think, as much as 18 inches: I think it is about as much as a box car does. I had not seen these clinkers there before that. I have no recollection of .ever seeing them. I never saw them at the time of the accident, but I felt my foot strike something.” The engineer, Boyles, did not see appellee fall, but did see him immediately after he had fallen. He testifies: “I went up to Geron and asked him if he was hurt, and he said he was all broke up. I asked him how it happened, and he said he must have stepped on a clinker. I called to one of the brakemen to go get a doctor, and he said he had already sent for one. Then I stepped the distance between him and the clinkers. It was between 35 and 36 feet. I suppose there were some little clinkers, and there was one the size of my cap. I don’t suppose the clinkers were in a space over two feet, and in a kind of a circle. I made an examination between the space were these clinkers were, and where Geron was lying, to see if there were any footprints on the ground, and there was one impression there like as if a person had set his foot down pretty tolerably deep. It might have been an inch down, or two — say an inch in the ground. It didn’t show the print of the heel, the toe and the whole foot. It showed like it was shoved down. It didn’t show a track — a boot track — a foot track. I did not notice any track about the clinkers. That impression there in the ground was about 12 feet from where Frank Geron was lying.” The brakeman, Blevins, testified: “I saw Frank get off the flat ear, and it looked to me like he went to catch the stock car and kind of stumbled and went out of my sight for just a short while, and the car rolled up the track a way, and then I noticed Frank lying on his side, and I went up to where he was. From where I was at, the best I could tell, I saw him attempt to catch the car that had been kicked on the track, and it looked like he stumbled, or something threw him off. When I got up to him I asked him what was the matter, and he kind of grunted, and said he stumbled over a cinder or clinker, or something of that effect. He appeared to be pretty badly hurt as far as I could tell. Before I left there I walked up the track a few feet and saw some clinkers where they had been cleaned up from the fire box. It looked like they had been thrown out, and extended over — small ones and large ones — -from near the track over to the passing track, probably four or five feet from where they shoveled them out. Some of them were small, some of them as large as my hat. All I could tell about these clinkers being disturbed was that I saw some green grass growing around them, and I saw some bright-looking grass. That is all I could tell about the clinkers being disturbed. And it looked like they had been knocked around, and showed some bright-looking grass. In my opinion, from the appearance of the ground and the grass, it looked like the clinkers had been recently disturbed. * * * I don’t think he moved square across from the main line towards the passing track. I believe he veered a little. He kind of jumped off the flat car, and I guess you call it veering a little towards south, as well as I remember. The next I saw of him he kind of stumbled, or missed holt or something. I believe I saw him make a grab towards the grabiron — some kind of a motion like he was going to get on. Then he went out of my sight like, and the next thing I saw was his hat go off his head. That was right after he made the grab for the car, and I kind of saw the bulk of his body in the air through the slats of the stock car. * * * It was immediately after we loaded Mr. Geron on the flat ear that I went and looked at the place where the clinkers were. I saw marks on the ground, footprints — dirt fresh torn up — north of where Mr. Geron was lying; to the best of my knowledge about 6 or 8 feet. I suppose 80 or 35 feet; it may have been not so far from where he was lying to the nearest clinkers north of him.”

There is no pretense in the record of there being any obstruction or substances, except the particular clinkers, in the space between the main track and the passing track. It is a necessary conclusion from the evidence above that there were several clinkers — about a dozen and a half — lying in the space outside the main track and nearer to the passing track. According to the engineer the clinkers were in a circle over a space of two feet, and according to the brakeman the clinkers were extended in a line of four or five feet, beginning at the passing track; and both agree that several of the clinkers were of the size of a man’s hat. And the testimony of the engineer, who stepped the distance at the time of the injury, was to the effect that the clinkers were located “between 35 and 36 feet” above the point where the body of appellee was lying on the ground after he fell from the car. The brakeman says that just after the injury, and commencing at the point on the ground where the body of appellee was lying after the fall, he “walked up the track a few feet and saw some clinkers, where they had been cleaned out from the fire box”; and on cross-examination: “I suppose it was 30 or 35 feet; it may not have been so far, from where he (ap-pellee) was lying to the nearest clinker north of him.” And according to the testimony of the brakeman the appearance on the ground of green grass and bright-looking grass showed that a clinker had been recently disturbed. According to appellee he was dragged a distance from where he attempted to get on the car to the point where he fell, which could reasonably be inferred was the length of the ear, or about 35 or 36-feet. Thus by giving force to all the testimony it is believed that the facts and circumstances reasonably point to a clinker as the obstacle that the appellee’s left foot struck, causing him to lose his balance, and the court did not err in passing the question to the jury.

The appellant argues that the appellee, to-reach the moving stock ear, must necessarily have gone some distance south of the clinkers, and therefore could not have struck any of them. This is on the theory that the evidence indisputably shows that the clinkers were located halfway between the north end of the flat car on which appellee was standing and the switch, and the north flat car to be located several car lengths below the clinkers, to the south of the switch. While the record has Mr. Blevins saying, as insisted by appellant, “I suppose it was about halfway from the first fiat car, the north flat car on the main line, to the switch of the passing track in the yards there at Quinlan that I saw these clinkers,” it also has him saying in the very succeeding sentence these words: “I suppose it would be about five car lengths, maybe a little further, from the clinkers up to the switch, as well as I remember” — and the record further on has him saying that the distance from the body of appellee to the clinkers, when appellee was lying on the ground where he fell from the stock car, was “30 or 35 feet.” The record has Mr. Blevins locating _ the north end of the flat car on which appellee was standing at the time he went to catch the moving stock car at “probably half a car length or a car length in the clear of the clearing post.” We do not think that the witness Blevins intended, considering all his testimony, to locate the flat car at several car lengths, or any distance south of and below the clinkers, but that his testimony is in harmony and consistent with the other evidence and circumstances. If force be given to his testimony that the clinkers were five car lengths from the switch this would put the north end of the north flat car, if rolling only one-half a car length below “the clearing post,” probably one car length, or 36 feet, north above the clinkers; and if appellee “veered to the south,” as Blevins said, he could have reached the clinkers. And if the cars rolled a car length below “the clearing post,” this would place the north end of the north flat car probably near or opposite to the clinkers. And if he went directly across, as appellee says, he would have reached the clinkers. And even if we assume that the witness Blevins intended to locate the flat ear above or below the clinkers, yet in determining an issue vel non for the jury, the testimony of appellee and the circumstances could not be all ignored and Blevins’ statements taken as conclusive. We think the assignment must be overruled.

The second assignment predicates error upon the following part of the second paragraph of the court’s charge: “But they [employés] do not assume any risk of dangers arising from or caused by the negligence of the company.” The charge in hand is not technically correct where the employs actually knew, or must necessarily have become aware of the neglect in the usual and ordinary performance of his woris. But in this case under the facts no injury could be said to have resulted to appellant from the abstract charge given by the court, for the evidence did not present nor tend to raise an issue of assumed risk, even if the common-law doctrine of assumed risk were applicable, as contended by appellant. The facts relied on and urged as showing assumed risk were the clinkers being on the ground, and appellant’s knowledge of their existence. There were, under the evidence, about a dozen and a half clinkers of varying size from very small ones to the size of a hat, lying on the ground either in a circle of about two feet, as said by the engineer, or extended lengthwise, as said by the brakeman, over a distance of four or five feet. And these clinkers were covered by green grass growing over them. Appellee did not know of their existence on the ground before the injury, and there are no facts tending in the least to challenge or conflict with this statement in respect thereto. And it is not disputed that the disance he had to travel from the flat car to the rapidly approaching stock car was about 10 feet, and that he covered the distance quickly by three or four steps to catch the moving car, intent at the moment on the movement of the stock car. And he stumbled over a clinker only the moment he caught the handhold of the moving car. There are no other facts or circumstances tending to show that he must have become aware of the clinkers in the usual and ordinary performance of his work until the very moment he stumbled, which caused the injury. In view of the evidence the assignment is overruled as being without injury.

The third assignment predicates error in the third paragraph of the court’s charge as being affirmative error in failing to authorize the consideration by the jury of assumed risk on appellee’s part. The answer to this must be, as in the preceding assignment, that the evidence does not make any issue of assumed risk, and therefore the error, if any, is entirely harmless, and would not be a ground justifying a reversal of the judgment.

We feel that the presentation of this case on appeal by appellant’s counsel, in bringing forward only assignments that this court should properly be called upon to review, should be commended as a proper course to be followed.

The judgment of the court below is affirmed.