case is in the same condition as that in cause No. 3,372, Wash Davis v. State, supra. For the reasons there indicated, the judgment is reversed, and the cause remanded.

EHLERT v. STATE.

(Court of Criminal Appeals of Texas. Jan. 31, 1906.)

CRIMINAL LAW-RECOGNIZANCE ON APPEAL.

A recognizance on appeal from a conviction of misdemeanor failing to show the punishment assessed, as required by Code Cr. Proc. art. 887, does not confer jurisdiction.

Appeal from Wichita County Court; M. F. Yeager, Judge.

Will Ehlert appeals from a conviction. Dismissed.

H. H. Womack, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. This conviction was for disturbing the peace, the fine imposed being $10.

The conviction occurred in the justice court, appeal being taken to the county court, where it was dismissed because the appeal bond was defective; and thence appeal was taken to this court. The Assistant Attorney General has filed a motion to dismiss the appeal because the recognizance does not confer jurisdiction on this court, and does not comply with article 887, Code Cr. Proc. The motion is well taken. May v. State, 40 Tex. Cr. R. 196, 49 S. W. 402; Horton v. State, 68 S. W. 172, 4 Tex. Ct. Rep. 895. The appeal is dismissed.

Where, in an action against a carrier for delay in delivering certain threshing machinery, plaintiffs claimed special damages, in that they lost the benefit of contracts with certain individuals in the neighborhood of the place to which the machinery was shipped for the threshing of 30,000 bushels of grain, a complaint failing to allege the names of the persons with whom it was claimed plaintiffs had such contracts was objectionable. 2. SAME.

A complaint against a carrier for delay in the transportation of certain threshing machinery alleged that plaintiffs used 22 head of horses and 20 men at an expense of not less than $40 per day; that said men and teams were forwarded to the destination of the machinery, so as to be there on the arrival of the machinery, and that because of the delay, plaintiffs incurred an expense of maintaining such employés and teams during four and a half days at $40 a day, and that defendant, at the time of the shipment, knew that if there was a delay plaintiffs would be damaged in the manner and form alleged. Held, that the complaint was not objectionable for failure to allege that

defendant was notified of the advance shipment of plaintiffs' men and teams, or that expense or injury would result from such delay and the amount thereof.

3. SAME EVIDENCE.

Where, in an action against a carrier for delay in delivering threshing machinery, plaintiffs alleged that they had contracted to thresh about 30,000 bushels of grain in the vicinity of the place to which the machinery was shipped; that they threshed 10,000 bushels, but lost the threshing of the remainder, evidence that when the machinery arrived there were two other machines on the ground, and that if plaintiffs' machinery had arrived in time, they would have threshed all the wheat that their competitors threshed, was inadmissible.

4. EVIDENCE-HEARSAY.

Where witness stated that the contracts for threshing certain grain were made with his partner, evidence that B., whom witness met at a certain place, was one of the men with whom his firm had contracted to thresh grain, was inadmissible as hearsay.

In an action against a carrier for delay in transporting a threshing outfit, an instruction that the measure of plaintiffs' damages was the expense, if any, incurred by plaintiffs in maintaining their employés and teams during the delay, if any, and the reasonable value of the time lost if any, during said delay "and the loss, if any, they sustained by reason of being deprived of the threshing of any of the crops of wheat, which they had contracted for," was objectionable, as authorizing double damages for the same injury.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by Sproles & Vines against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Reversed.

T. S. Miller and Perkins & Craddock, for appellant.

TALBOT, J. The appellees, Sproles & Vines, a firm composed of W. J. Sproles and T. J. Vines, instituted this suit against the appellant, railway company, to recover damages on account of an alleged delay in the delivery of threshing machinery shipped from Greenville, Tex., to Rhome, Tex.

It was alleged: "That on the 9th day of July, 1903, plaintiffs were the owners and in possession of certain threshing machinery and threshing outfit, and were engaged in threshing wheat and oats for hire. That in the operation of said thresher, it was nec essary and plaintiffs did use 22 head of horses and 20 men at an expense of not less than $40 per day, and were able to and did thresh an average of 1,800 bushels of grain per day, for which they were paid from 8 to 9 cents per bushel, the usual and customary price for threshing grain. That on said date the plaintiffs desired to ship said threshing out

fit and machinery from Greenville to Rhome in Wise county, Tex., a station on the Ft. Worth & Denver City Railroad, situated about 25 miles north of Ft. Worth, and about 75 miles south of Wichita Falls. That prior to said date plaintiffs had engaged, and made contracts to thresh grain crops near Rhome, said station, amounting to at least 30,000 bushels commencing on the day of July, 1903, which would have required about 18 days to have threshed said grain. That said grain crops were all located in one neighborhood, and plaintiffs would and could have realized a profit over and above expenses of at least $100 per day during said time, if plaintiffs had threshed said grain. That on said 9th day of July, 1903, plaintiffs applied to the defendant's agent at Greenville to ship said threshing machinery to Rhome, Tex. That the defendant, acting by its authorized agent, who was acting within the scope of his authority, with full knowledge of the purpose and necessity of immediate shipment and speedy delivery of said machinery to and at said station, received said machinery, and undertook for a consideration paid in advance to ship said machinery by the nearest route and to deliver the same within one day and a half time, or by noon of the 10th day of July, 1903. That on said first date mentioned, and prior to said date, plaintiffs had sent, and did send, their employés and teams to Rhome, so as to be there upon the arrival of said machinery, preparatory to commencing threshing of said grain. That on said date plaintiffs, with their employés and teams, were in said neighborhood near Rhome ready to take charge of the threshing machinery on its arrival. That the defendant negligently and carelessly, and with the knowledge of all the facts hereinbefore set forth, failed to ship said machinery by the nearest route, and failed to deliver the same at the time and place agreed to, but negligently and carelessly delayed the shipment and delivery of said machinery until the 16th day of July, 1903, a period of 6 days." The defenses were a general demurrer, a number of special exceptions, and a general denial. A trial by jury resulted in a verdict and judgment for appellees for the sum of $500, from which this appeal is prosecuted.

The court erred in overruling appellant's fourth, seventh, and eighth special exceptions to appellees' petition. These exceptions questioned the sufficiency of appellees' petition on the ground: (1) that it does not appear therefrom that appellant was notified before, or at the time of making said contract of shipment, with whom appellees had contracted to thresh grain, nor what amount, nor kind of grain, they had agreed to thresh for each of the persons with whom they had contracted; (2) that it does not appear from said petition who the persons were with whom appellees had contracted to thresh the grain mentioned therein, nor when the grain of each was to be threshed.

The damages sought to be recovered were special damages, and did not arise as a natural consequence of a breach of the contract alleged. In such case all the facts giving the cause of action, and upon which the right of recovery depends, must be alleged and proved. That the defendant is entitled to be so apprised of the nature of the demand against it as will enable it to prepare its defenses, is an elementary rule of pleading. Townsend v. T. & N. O. R. R. Co. (Tex. Civ. App.) 88 S. W. 302, was an action for breach of a contract of carriage, the plaintiff claiming special damage, as in the present case, on the ground that because of his failure to reach a certain town at the time he would have reached it had defendant performed its duty, he had failed to consummate a "land and cattle deal," by which he would have realized a large profit. It was held that the petition was defective, in that it failed to give "the names of the parties with whom said deal was to be made," and that an objection to it on that ground was properly sustained. The court says: "The defendant was entitled to have the petition state all the facts in regard to the alleged transaction, in order that it might make the investigation necessary to a proper preparation of its defense. Information as to names of the parties with whom it is alleged the deal could have been made was necessary, in order to enable the defendant to investigate and meet the allegation." For the same reason the names of the parties with whom it is alleged the appellees in this case had a contract to thresh grain should have been stated in the petition. The quantity of grain to be threshed was sufficiently alleged, and perhaps it was unnecessary to allege the kind of grain; but the question can be easily eliminated from the case by supplying the allegations before another trial by amendment.

We think the court did not err in refusing to sustain appellant's fifth and sixth special exceptions, to the effect that appellees' petition, wherein it is alleged that they had sent their employés and teams, consisting of 22 horses and 20 men, to Rhome, Tex., to be there on the arrival of the machinery, etc., at an expense of $40 per day, was insufficient, because it is not shown by said petition that appellant was notified of that fact before or at the time the contract of shipment was made, nor that any expense or injury, nor the amount thereof, would result on account thereof, and because it was not alleged that before, or at the time the contract of shipment was made, the defendant was notified that plaintiffs had said teams in use and men employed, nor how many of each. It was alleged in substance that in the operation of the machinery shipped appellees used 22 head of horses and 20 men at an expense of not less than $40 per day; that appellees on the 9th day of July, 1903, sent said employés and teams to Rhome, Tex., so as to be there upon the arrival of said ma

chinery, preparatory to commencing threshing of the grain, which they had contracted to thresh; that on said date appellees, with said employés and teams, were in the neighborhood of Rhome, Tex., ready to take charge of the threshing machinery upon its arrival. It was further alleged that in the operation of the thresher it was necessary, and appellees used 22 head of horses and 20 men at an expense of not less than $40 per day, and that on account of the delay appellees incurred, an expense of maintaining said employés and teams during 4 days at $40 per day; that the defendant at the time it undertook to make such shipment knew that, if there was a delay in the shipment, plaintiffs would be damaged in the way and manner set forth. These allegations in respect to the phase of the case to which they relate, were sufficiently specific, and the exceptions thereto were correctly overruled. After appellee Sproles, while on the witness stand, had stated that on account of the delay in the arrival of his machinery at Rhome, other arrangements had been made by the people whom he had engaged to serve, and there were two machines on the ground, he was permitted to testify over the objections of appellant, that if appellees' machinery had arrived at destination on the 10th day of July, they would have threshed all the wheat that those other people threshed. This was error. Appellees alleged that they had contracted to thresh about 30.000 bushels of grain; that they threshed 10,000 bushels of the same, but lost the threshing of the remaining 20,000 bushels. Having alleged that their damage in this particular accrued by reason of such loss, the evidence should have been confined thereto, and not extended beyond said 20,000 bushels of grain.

We are of the opinion that the court erred in permitting appellee Vines to testify over appellant's objections, that a Mr. Barker, whom he met while he was out near Rhome, was one of the men with whom his firm had arranged to thresh grain. This testimony was objected to on the ground that it was hearsay, and the objection should have been sustained. The witness had stated, in substance, that he did not make the contract with the parties for the threshing of the grain; that his partner, Mr. Sproles, made the contract. It is evident from the answer of the witness to the question his knowledge of the matter was based solely upon what Barker told him. He said: "from his [Barker's] conversation he [Barker] was one." The testimony was hearsay, and should have been excluded. For the same reason appellant's motion to strike out the testimony of the said witness Vines, to the effect that Barker was one of the men for whom plaintiff had arranged to thresh grain, should have been sustained.

The trial court, after charging the jury to the effect, that if the railway company, at the time it undertook the shipment of appellees' "threshing machinery outfit" knew the object and purpose that they had in desiring an immediate shipment, and that if the shipment was delayed appellees would probably suffer loss, etc., to find for appellees, concluded the paragraph with the following language: "In this connection you are charged that whatever is sufficient to put a party upon inquiry amounts to notice, if the inquiry becomes a duty and would lead to knowledge of the required fact." That portion of the charge quoted is assailed on the ground that it requires of the appellant more than was devolved upon it by law. The objection is well taken. It was essential to appellees' recovery of the special damages claimed, that they allege and prove notice to appellant, at the time of the shipment of the machinery, of facts which made a prompt shipment and delivery thereof necessary to avoid probable loss by reason of a failure to do so. The rule of constructive notice, as charged, would not, in our opinion, apply in such a case.

of

The court's charge on the measure damages is also assailed, on the ground that it authorizes double damages for the same injury. The jury were instructed that the measure of plaintiff's damages, would be the "expense, if any, incurred in maintaining their employés and teams during the delay, if any, and the reasonable value of the lost time, if any, during said delay and the loss, if any, they sustained by reason of being deprived of the threshing of any of the crops of wheat and oats, which they had engaged or contracted for,"etc. We think the charge subject to the criticism made. The lost time referred to in the charge was necessarily that period of time which appellees claim they would have been engaged in threshing the grain contracted to be threshed but for the delay in the delivery of their machinery. They were not entitled to a recovery for such "time lost," and also the loss sustained by reason of being deprived of the threshing of the grain that might have been threshed during such time but for the delay, of which complaint is made. In other words, the measure of appellees' damages, under the pleadings, was the net profits on so much of the 30,000 bushels of grain they had contracted to thresh, as they did not thresh and the threshing of which was lost to them on account of the delay, together with the reasonable cost and expense of maintaining the men and teams during the delay.

We have observed no reversible error in the assignments of error not discussed.

For the errors indicated, the judgment is reversed, and the cause remanded.

J. B. WALLIS & CO. v. WALLACE. (Court of Civil Appeals of Texas. Dec. 21, 1905. Rehearing Denied Feb. 7, 1906.) 1 ANIMALS-PASTURAGE CONTRACT-ACTIONS -QUESTION FOR JURY.

Where defendant orally agreed to pasture plaintiff's cattle and to put no other cattle or live stock in the pasture, except 8 or 10 head of defendant's cattle, whether defendant's alleged statement that he would not overstock the pasture was a part of the contract was a question for the jury in an action for breach thereof.

2. SAME-IMPLIED PROMISE.

Where defendant orally agreed to pasture plaintiff's cattle at so much a head, and that he would put no other cattle or live stock in the pasture while plaintiff's cattle remained therein, except certain cattle of his own, a provision of the contract that defendant would not overstock the pasture, and that he would keep the fences surrounding it in a reasonably safe condition will be implied.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Animals, § 42.]

3. SAME TERMINATION OF AGREEMENT.

The fact that there was no definite time agreed on during which the contract should continue, would not deprive plaintiffs' of their right to recover for the damages sustained while the cattle were permitted to remain in the pasture by virtue of the contract.

4. SAME-DAMAGES.

In an action for breach of a pasturage contract by permitting the pasture to become overstocked plaintiff was entitled to recover the difference between the market value of the cattle immediately prior to their depreciation in value because of lack of feed, considering their then condition and their market value at the time they were removed from the pasture, if any, otherwise the reasonable value of the cattle when so removed.

5. COSTS-WITNESS FEES-BURDEN OF PROOF. Under the statute providing that only two witnesses to the same fact shall be entitled to witness fees, the burden is on the party complaining of witness fees taxed as costs to establish the fact that the witnesses subpoenaed and in attendance were for the purpose of testifying to the same fact.

Error from Brown County Court; S. C. Coffee, Judge.

Action by J. B. Wallis & Co. against W. J. Wallace. From a judgment for defendant, plaintiff brings error. Reversed.

E. C. Harrell, for plaintiff in error. G. N. Harrison, for defendant in error.

FISHER, C. J. The plaintiffs in error brought this suit against Wallace to recover damages for breach of a verbal contract, in which it is claimed the defendant for a valuable consideration agreed to pasture about 116 head of cattle of plaintiffs in error, and that he would place no other cattle or live stock in the pasture while the 116 head remained therein, except about 8 or 10 head of his own cattle; that the defendant in error breached the contract by placing a large number of other cattle in the pasture, by reason of which the grass was consumed, and that the plaintiffs in error's 116 head were starved and damaged to the extent of $2.50 per head, amounting in the aggregate to the sum of

$290. The contract was silent as to the length of time it should continue.

The court after hearing the evidence gave a peremptory instruction in favor of defendant in error which is complained of by the plaintiffs in error by proper assignments raising the question. In our opinion, the evidence was sufficient to require a submission of the issues raised by the plaintiffs' pleadings to the jury. The pasture was either owned or under the control of the defendant in error. The plaintiffs did not rent the pasture, but entered into a contract with the defendant to put in the defendant's pasture 116 head of cattle, at so much per head a month. The cattle at the time they were placed in the pasture, the evidence shows, were in fair condition, and the grass in the pasture was ample to support and maintain the number of head put therein for a reasonable length of time; and it reasonably appears from the evidence that the pasture I would not be overstocked with that number of cattle in it. There is evidence to the effect that a few weeks after the cattle were placed in the pasture the defendant permitted other stock to go into the pasture, and the same became overstocked; and, according to plaintiffs' evidence, their cattle when taken out of the pasture some time in October were in an impoverished condition, by reason of the fact that the defendant permitted the pasture to become overstocked. As to whether the statement of the defendant, as shown by the evidence of the witness with whom he made the contract in behalf of the plaintiffs, that he would not overstock the pasture was a part of the contract, was a question to be determined by the jury. It is a difficult matter to say from the evidence that the contract had become executed and all of its terms agreed upon prior to the time that this statement was made; but however, their contract being verbal as to whether the statement was a promise that the pasture would not be overstocked was a part of the contract, was a matter to be determined by the jury, if it should be held important to inquire into that question. But, however, we are of the opinion that even in the absence of an agreement or promise upon the part of the defendant that the pasture should or would not be overstocked, the law, in view of the peculiar terms of the contract, would imply such a promise. As before said, the plaintiffs did not rent the pasture, but merely placed the agreed number of cattle in the pasture at so much per month, which the defendant agreed he would furnish pasturage for. The undertaking being of this character, the law would imply the promise or impose the duty upon the defendant of keeping the fences around the pasture in a reasonably safe condition, and that he would not knowingly suffer or permit the pasture to become overstocked, so as to injure the cattle that he had expressly agreed to furnish pasturage for. These questions were practically settled by

the case of McAuley v. Harris (Tex. Sup.) 9 S. W. 680, 684. The fact that there was no definite time agreed upon during which the contract should continue, would not deprive the plaintiffs of their right to recover for the damages sustained while the cattle were suffered and permitted to remain in the pasture by virtue of the contract under which they entered. It is clear from the evidence that so long as the cattle remained in the pasture without objection or protest upon the part of the defendant in error, that the parties treated the contract as continuing. In view of the peremptory instruction, and in view of the fact that we will reverse the case upon that ground, we doubt seriously whether we should pass upon the remaining assignments. But, however, we will express generally our views upon the questions raised. Those assignments which complain of the action of the trial court in refusing to permit certain evidence with reference to the damages sustained may be disposed of with the statement that, in our opinion, the plaintiffs would be entitled to recover in the event that the verdict would go in their favor, the difference between the market value of the cattle immediately prior to their depreciation in value, taking into consideration their then condition, and their market value at the time they were removed from the pasture, taking into consideration their impoverished condition, by reason of the breach of the contract by defendant not to permit or suffer the pasture to become overstocked. If there was no market value of the cattle at the place or the immediate surrounding country where the cattle were pastured, then the plaintiffs would be entitled to show the reasonable value of the cattle, taking into consideration all pertinent facts that might have any bearing upon this question. The question as presented with reference to retaxing the costs as to witness fees may possibly arise upon another trial. The statute provides that only two witnesses as to one and the same fact will be entitled to witness fees; and if the question should again arise, we would suggest that the burden would be upon the party complaining

to establish the fact that the witnesses subpoenaed and in attendance were for the purpose of testifying to the same fact.

For the error stated, the judgment is reversed, and the cause remanded. Reversed and remanded.

PLANTERS' COMPRESS CO. v. HOWARD. (Court of Civil Appeals of Texas. Jan. 6, 1906. Rehearing Denied Feb. 3, 1906.) LANDLORD AND TENANT-CROPS-LANDLORD'S LIEN-WAIVER.

In an action by a landlord against a buyer of crops on which the landlord had a lien, the evidence showed that the tenant had from time to time sold crops to the buyer; that the landlord had received his part of the proceeds of each sale as rent; that the sales were shown by tickets issued by the buyer on his printed stationery, which tickets the tenant sent to

the landlord. Held, that the landlord waived his lien, and the buyer at subsequent sales took the crops free therefrom.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Landlord and Tenant, § 1036.]

Appeal from Bosque County Court; P. S. Hale, Judge.

Action by J. D. Howard against the Plant-ers' Compress Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Crane & Gilbert, for appellant. Cureton & Cureton and Robertson & Robertson, for appellee.

CONNER, C. J. On a former appeal & judgment in appellee's favor was reversed because of the submission of an erroneous charge, as will be seen by a reference to 80 S. W. 119. The case is again before us, and the only assignment of error we deem material is that under which appellant asserts that the testimony does not sustain the verdict and judgment in appellee's favor now under review. Briefly stated, the facts show that appellee rented certain lands in Bosque county to P. A. Holt for the year 1902, upon which said Holt and a son raised, among other things, a crop of cotton. Appellee furnished his tenant certain supplies to enable him to make a crop, and by the terms of the rental contract was entitled to one-fourth of the cotton as rent. This suit was instituted upon the 11th of May, 1903, by appellee against appellant to recover the value of certain cotton alleged to have been raised on the rented premises, upon which he alleged he had a lien to secure several hundred dollars for advances made to said tenant, and which said cotton, it was alleged, had been sold to and converted by the appellant company. On the trial appellee recovered judgment for the sum of $331.80, and, as before stated, it becomes our duty to determine the sufficiency of the evidence to sustain the verdict and judgment.

It is undisputed that the premises described in appellee's petition were rented as alleged, and that the tenant, Holt, together with his son, raised about 22 bales of cotton, and that

appellee furnished advances substantially as alleged. It must also be held from the evidence in deference to the verdict of the jury that appellee gave the tenant no authority to sell the cotton, but, on the contrary, that some time about the 15th of October, 1902, he forbade the sale of any more cotton until the advances made by him had been paid, it appearing from the evidence that some six or seven bales of cotton had been sold by Holt prior to this time without having discharged the lien thereon for advances. It is also undisputed that appellee gave no notice to appellant of the existence of his lien or of his notice to Holt not to sell. The crucial point, however, in the case, is whether the evidence conclusively shows that appellee waived his lien as against appellant, notwithstanding the circumstances hereinbefore stated. this point the evidence is substantially as

Upon