"It is contended that the testimony fails to show any injury resulting from the transaction, even if it be a fraudulent one. Such additional evidence would undoubtedly be required in order for the plaintiff in a final trial to recover damages, or to have a rescission of his contract. Blair v. Baird, 43 Tex. Civ. App. 134, 94 S. W. 116; Moore v. Cross, 87 Tex. 557, 29 S. W. 1051. But, in determining the question of venue only, we do not think the plaintiff is required to prove all the facts essential to support a final judgment in his favor upon the merits of the case. If the suit is based upon fraud, he may sue in the county where the fraudulent act was committed, and there try his right to recover his damages, or any appropriate relief to which he may be entitled."

Again it is said:

"It is unnecessary at that stage for the court to ascertain whether or not a cause of action can be shown by the evidence, for the reason that no appropriate judgment upon that issue can then be rendered. Whether or not the plaintiffs sustained an injury from the perpetration of the fraud and the extent of that in

jury are matters to be determined in a trial upon the merits, after the issue of venue has

been settled."

This opinion seems to be the holding of the majority for whom Judge Hodges speaks. Judge Wilson, however, dissented from that view, but agreed to the holding that there was testimony from which it might be inferred the appellee therein suffered injury because of his reliance on the truth of the representation. We are inclined to agree with the majority opinion in that case, and we think the testimony in this case is sufficient to raise the inference of injury occasioned by the fraudulent representations upon which the appellee relied. The cases cited by appellant we do not regard as in point. Cloyd v. Sacra (Tex. Civ. App.) 175 S. W. 456, simply holds the facts alleged did not constitute fraud. Brooks v. Hamilton (Tex. Civ. App.) 218 S. W. 38, was a suit for conversion of diamonds. In that case the conversion was held to have been in the county of defendant's residence, and not in that county in which the suit was brought.

goods on demand by the consignee when payment of charges and the bill of lading is offered, the burden is on the carrier to establish a lawful excuse, the last carrier in a series of carriers, on surrender of a bill of lading and payment of the charges by the consignee, was liable for loss of goods shipped, on failure to show a lawful excuse, though the consignee did not show on which line of the several carriers the loss occurred, regardless of section 8604a, making the initial carrier liable.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by the Brooks Supply Company against James C. Davis, Agent and Director General of Railroads. From judgment for plaintiff, defendant appeals. Affirmed.

F. J. & C. T. Duff, of Beaumont, for appellant.

Bowers & McCall and A. L. Shaw, all of Beaumont, for appellee.

HIGHTOWER, C. J. This is an appeal from a judgment of the county court of Jefferson county, against appellant, James C. Davis, in his capacity as Agent and Director General of Railroads, in favor of the appellee, Brooks Supply Company, for $120, with 6 per cent. interest from date of the judgment. The case was tried upon an agreed statement of facts, which was as fol

lows:

tion, alleged that on October 15. 1919, there "(1) Plaintiff (appellee), by its original petiwas a shipment of oil-well supplies contained in ML&T car 21208, which was delivered to the Director General of Railroads, operating the Sunset Railway Company at Kerto. Cal.; that said shipment was consigned to the Brooks Supply Company at Beaumont, Tex.; that on the delivery of the shipment to the consignee at Beaumont there was missing from the car one swivel hook, one slide tong, one star blower, two foot valves, one hose nozzle, and one goose neck coupling of the aggregate value of $120.20. Plaintiff prayed judgment against the Director General of Railroads operating the Texas & New Orleans Railroad Company for the value of the supplies which were short. The defendant, Director General of Railroads, answered

We believe the judgment should be af- by general demurrer and general denial, and firmed.

DAVIS, Agent, v. BROOKS SUPPLY CO.
(No. 756.)

(Court of Civil Appeals of Texas. Beaumont.
Feb. 13, 1922. Rehearing Denied
April 12, 1922.)

Carriers

185(1)-Delivering carrier held liable for shortage in interstate shipment on failure to show lawful excuse.

Under U. S. Comp. St. § 8604dd, providing that, if a carrier fails or refuses to deliver

specially answering, alleged that the shipment was an interstate shipment of freight, and that the federal laws applied and not the state laws, and more especially the law passed by the federal Congress to regulate interstate commerce and fixing the liability of common carriers engaged in interstate commerce; that the shipment in question originated on the Sunset Railway Company's lines, moved over several lines to the line of the Texas & New Orleans Railway Company, which was the delivering carrier; that all of the roads are operated by the United States Railroad Administration and were engaged in interstate commerce.

"(2) The following facts were proven: "That on October 15, 1919, a shipment of oil well supplies, contained in ML&T car No.

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(239 S.W.)

21208, delivered to the Sunset Railway Company at Kerto, Cal., consigned to the Brooks Supply Company at Beaumont, Tex.

"That said shipment was routed and the car moved over the Sunset Railway Company, the Galveston, Harrisburg & San Antonio Railway Company and the Texas & New Orleans Railway Company to destination; that all of these roads at that time were being operated by the United States Railroad Administration, and the Texas & New Orleans Railroad Company was the delivering carrier.

"That said shipment was a through shipment of freight, a through bill of lading for which was issued by the Sunset Railway Company. "That upon the delivery of the car to the consignee at Beaumont, there was missing from the shipment the several articles above mentioned, the aggregate value of which was $120.20.

"That notice of claim was properly filed by the Brooks Supply Company.

"(3) That the following issue of law is in

volved in this case:

"This being an interstate shipment of freight which moved over more than one line of railroad. and there being no testimony as to where the loss occurred, is the burden on the delivering carrier to show that the loss did not occur while the shipment was in its hands, or is the burden on the plaintiff, who sues the delivering carrier, to show that the loss occurred while the shipment was in the possession of the delivering carrier?

"We agree that this case, upon appeal, may be decided upon this agreed statement, in accordance with the provisions of the statute, and determined accordingly.".

It is contended by appellant that section 8604a, p. 1373, of the U. S. Compiled Statutes of 1918, Compact Edition, must control in determining its liability, upon the agreed facts of this case. That section, in so far as it is applicable here, reads as follows:

in the United States to a point in an adjacent foreign country, or for transportation wholly within a territory shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading. *

It is appellant's contention, in substance, that under this section, and upon the agreed statement of facts in this case, the liability of the initial carrier, the Sunset Railroad Company, was complete and absolute, regardless of where the loss in this instance occurred, and that, the appellee having brought his suit against the delivering carrier only, it was incumbent upon appellee, before being entitled to judgment against appellant to prove that the loss occurred upon appellant's railroad.

It is appellee's contention that it was incumbent upon appellant, the delivering carrier, in order to defeat liability, to establish a lawful excuse for its failure and refusal to deliver the missing articles of the shipment in compliance with the demand of appellee, the consignee, who was the legal holder of the bill of lading, and especially so after appellant had acknowledged receipt of the shipment by issuing and delivering to appellee a freight bill and receiving payment for the entire charge on the shipment, as it was shown to have done in this case. pellee's counter proposition on the point is as follows:

Ap

"On the interstate shipment, the delivering carrier is liable for all damages that may occur by failing to deliver the goods to the consignee or holder of the bill, unless it establishes a lawful excuse for such failure, on demand."

"Any common carrier, railroad, or transportation company subject to the provisions of this act receiving property for transportation from a point in one state or territory or the District of Columbia to a point in another state, territory, District of Columbia, or from The bill of lading under which the shipany point in the United States to a point in an adjacent foreign country shall issue a receipt ment in question moved contained no limior bill of lading therefor, and shall be liable tations as to liability of either of the carto the lawful holder thereof for any loss, dam- riers over whose line the same moved; that age, or injury to such property caused by it or is to say, there was no provision in the bill by any common carrier, railroad, or transporta- that the liability of either of the companies tion company to which such property may be would be limited to a loss or damage occurdelivered or over whose line or lines such prop-ring upon its own line. It is undisputed erty may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; and any such common carrier, railroad, or transportation company so receiving property for transportation from a point in one state, territory, or the District of Columbia to a point in another state or territory, or from a point in a state or territory to a point in the District of Columbia, or from any point

that, as shown by the agreed statement above, some of the articles comprising the shipment and being of the aggregate value of $120.20 were not delivered by the Texas & New Orleans Railroad Company or Director General of that road to appellee, after due and proper demand had been made for the same, and no excuse or reason was shown by appellant or offered or attempted to be shown for its failure or refusal to make such delivery to appellee or as to where the loss of the articles occurred.

Section 8604dd, United States Compiled Statutes 1918 (Compact Edition) p. 1374, reads as follows:

"A carrier, in the absence of some lawful excuse, is bound to deliver goods upon a demand made either by the consignee named in the bill for the goods or, if the bill is an order bill, by the holder thereof, if such a demand is accompanied by

"(a) An offer in good faith to satisfy the carrier's lawful lien upon the goods;

"(b) Possession of the bill of lading and an offer in good faith to surrender, properly indorsed, the bill which was issued for the goods, if the bill is an order bill; and

"(c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the carrier.

"In case the carrier refuses or fails to deliver the goods, in compliance with a demand by the consignee or holder so accompanied, the burden shall be upon the carrier to establish

the existence of a lawful excuse for such refusal or failure."

Upon the undisputed facts in this case, the Texas & New Orleans Railroad Company was one of the connecting carriers, handling this shipment, and it was the delivering carrier and delivered the car containing the shipment to appellee at Beaumont, Tex., and appellee surrendered the bill of lading under which the shipment moved, and paid to appellant the freight charges due therefor. It is undisputed that the shipment was short to the extent of the value of $120.20, and upon appellee's demand, timely made, to appellant for the lost articles, appellant failed or refused to make such delivery. Under such undisputed facts, we think that under section 8604dd, above, the trial court was not in error in awarding judgment in favor of appellee, even though appellee did not show upon which line of the several carriers the loss occurred.

The judgment is therefore affirmed.

CARTER v. WEBB. (No. 1904.) (Court of Civil Appeals of Texas. Amarillo. March 22, 1922.)

1. Boundaries 40(1)-Location of section corners held for the jury.

Evidence held sufficient for submission to jury of issue as to location of section corners.

2. Adverse possession 115(1) — Whether purchaser of inclosed land acquired title by adverse possession to portion of adjoining owner's land included in inclosure held for jury.

Whether purchaser of a portion of inclosed land acquired title by adverse possession un

5. Adverse possession 25-Purchaser could gain title by adverse possession by possession of person whom he permitted to use land as pasture.

Purchaser of land could gain title by adverse possession by possession of another person whom he permitted to use the land as a pasture; such possession being sufficient to give owner notice.

6. Boundaries 42-Verdict and judgment should definitely establish location of disputed line with reference to known object.

In a boundary case the verdict and judgment should definitely fix and establish the location of the line in dispute with reference to some known object then in existence, concerning the identity and locality of which there is no dispute.

7. Boundaries 42-Verdict fixing section line as given distance from corner, location of which is in dispute, without locating corner by known object invalid for uncertainty.

In boundary case involving dispute as to location of section line, verdict fixing the line at a given distance from the southwest corner without locating or identifying the corner by some known object then in existence, though the location of such corner was in dispute, held invalid for uncertainty.

8. Boundaries 43-Judgment without aid of verdict, invalid for uncertainty, could not establish location of corner in dispute.

In a case involving issue as to location of a section line, in which the verdict was invalid for uncertainty, in that it fixed the line at a given distance from a corner, the location of which was in dispute, without locating the corner by some known object, the judgment, without the aid of such verdict, could not establish the corner.

9. Judgment 256(1)—Must follow verdict. The judgment must follow the verdict, and cannot add thereto or vary it.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(239 S.W.)

10. Judgment
verdict which fails to find on material issue
submitted.

256 (2)-Not entered upon, [1] There are several assignments and propositions to the effect that the evidence does not support the judgment, and that the trial court should have instructed a verdict for the appellant. It is urged the evidence does not definitely establish the original corners of the sections of land owned by the respective

The trial court cannot enter a judgment on a verdict which fails to find on material issue submitted to them for determination.

Appeal from District Court, Donley Coun- parties, or by the corners as shown by the ty; Henry S. Bishop, Judge.

Suit by W. B. Webb against C. C. Carter. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Elliott & Moss, of Memphis, for appellant.
A. T. Cole, of Clarendon, for appellee.

HUFF, C. J. This was a suit in form an action of trespass to try title to 440 acres of land out of section 110, block C6, brought by Webb against Carter. The appellant, Carter, by answer pleaded general denial, not guilty, and, further, that he does not claim any part of section 110 unless the same be inclosed within his fenced premises, which he and those under whom he claims have had and held adverse possession by virtue of title to the west one-half of section 12, block C9, beginning at the southwest corner of section No. 12, which is also the northwest corner of section 127, block C9, which point is in the `line of fence extending north and south near the center of the line running east and west; thence north with said line of fence 1,900 varas to corner; thence east 950 varas; thence by proper course and distance so as to close. The 3, 5 and 10 years' statute of limitations was also pleaded as a defense. The real purpose of the action was to establish the boundary between section 110 and section 12. The case was submitted upon one special issue to wit:

subsequent corrected surveys. The parties
on the trial of the cause both appear to rely
upon the corrected surveys as establishing
their boundaries. If the corrected surveys
change the original location, we find nothing
in the record showing that fact. The sections
appear to have been patented on the correct-
ed surveys.
The corrected field notes call
for sandstones at the northwest and south-
west corners of section 110. Witnesses tes-
tify to seeing rocks at points claimed for
those corners, and there is testimony by a
surveyor who sought to locate the land that,
by running from other accepted corners in
surveys, and running course and distance,
the corners or rocks would be approximately
located at the corners of this survey. It is
true the surveyor did not look for other ob-
jects called for as bearings for these corners,
or find the marks on the rocks called for in
the field notes. We think, nevertheless, the
evidence was sufficient to carry the case to
the jury, and would be sufficient to support
a verdict locating the corners at a point
where the rocks were found, or at least this
court would not be justified in holding that
such a verdict would be without evidence to
support it. The assignments presenting all
the above propositions will therefore be over-
ruled.

[2] The appellant pleaded the 10-year statute of limitation, and by special issue No. 8 requested the trial court to submit whether

"Where is the true boundary line between he and those under whom he claimed have surveys No. 12 and 110?"

The jury returned the following answer: "To special issue No. 1 we answer, beginning at the southwest corner of section 110, and go east 1,900 varas and establish line between sections 110 and 12."

and had peaceable adverse possession of the strip of land in controversy for a period of 10 years before the filing of this suit, using and enjoying the same. This charge was refused. The appellee shows title to 440 acres of section 110, being all of the section except about 200 acres out of the northwest corner

On this verdict the court entered the fol- of the section; his deed conveying to him lowing judgment: the east line or portion of the section. The "Wherefore the court is of the opinion that appellant has title to the west half of section the common boundary line between said sec-12. The field notes would seem to make the tion 110 in block C6 and the west one-half of section 12 in block C9 is a meridian line through a point 1,900 varas east of a rock, an iron pipe at the near center of the public road, running north from Lelia lake, the same being the southwest corner of section 110 and the northwest corner of section No. 108, and the north east corner of section 109, and the southwest corner of section No. 111, in block C6. The said boundary line being 21.2 varas east of the fence on the east side of said section No. 110, heretofore claimed as the west boundary of section 12 by defendant C. C. Carter."

east line of section 110 the west line of section 12. The two sections, however, are in different blocks, and have their connections from surveys in their respective blocks, each calling for corners apparently marked on the ground. The appellee instituted this action July 1, 1920, to recover a strip of land 21.2 varas wide by 1,900 varas long in the possession of appellant; however, the petition only describes the 440 acres owned by him. This strip of land appellee claimed as being part of section 110, while appellant was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

claiming it under his deed as belonging to | vendor's possession of his part any less exsection 12. clusive as to third parties. Parker v. Newberry, 83 Tex. 428, 18 S. W. 815; Church v. Waggoner, 78 Tex. 200, 14 S. W. 581; Taliaferro v. Butler, 77 Tex. 578, 14 S. W. 191; Alley v. Bailey (Tex. Civ. App.) 47 S. W. 821. The possession of Cook by permission of Edwards was sufficient to give notice to the owner of section 110 that the land within the inclosure was claimed by Edwards. An inquiry of Cook would have revealed for whom he was holding the land. Ramirez v. Smith, 94 Tex. 184, 59 S. W. 258; Collum v. Sanger Bros., 98 Tex. 162, 82 S. W. 459, 83 S. W. 184. The facts raise the issue of. an adverse holding to the owner of section 110 both by Edwards and appellant.