See Criminal Law, § 444; Evidence, §§ 390- an actual agreement, the question of partnership
450.

"Farmers' Co-Operative League," in which it
was sought to hold defendants as partners, evi-
dence held not to show that defendants held
themselves out as partners, or that plaintiff
supposed they were partners, and hence insuf-
ficient to establish a partnership by estoppel.
Willoughby v. Hildreth, 167 S. W. 639.

IV. RIGHTS AND LIABILITIES AS
TO THIRD PERSONS.

(D) Actions by or Against Firms or Part-

ners.

$ 219 (Tex.Civ.App.) In an action against
several carriers, as partners, for negligent delay
and rough handling of live stock, where the
pleadings of defendants denying the charge
were unverified, plaintiff could recover the whole
sum against either of the defendants.-Ft.
Worth & D. C. Ry. Co. v. Shank & Dean, 167
S. W. 1093.

VI. DEATH OF PARTNER, AND SUR-
VIVING PARTNERS.

§ 251 (Mo.App.) An administrator of a part-
nership estate is not entitled to possession of
chattels not the assets of the partnership.-In
re Whitlow's Estate, 167 S. W. 463.

§ 252 (Mo.App.) Rev. St. 1909, §§ 240, 241,
held applicable to partnership assets by virtue
of section 99, and the administrator of a part-
nership estate may be allowed a credit for debts
charged in the inventory as due the estate,
where the same cannot be collected by due dili-
gence. In re Whitlow's Estate, 167 S. W. 463.

VII. DISSOLUTION, SETTLEMENT,
AND ACCOUNTING.

(D) Actions for Dissolution and Account-
ing.

§ 317 (Tex.Civ.App.) That partner invested
money in partnership to defeat his creditors
held not to prevent a partition and accounting
from the other partner.-Freidenbloom v. Mc-
Afee, 167 S. W. 28.

§ 336 (Ky.) In an action by a survivor against
the estate of a deceased partner for an account-
ing, evidence held to support a finding that the
deceased partner died indebted to the surviving
partner in the sum of $10,274.38.-Newberry's
Adm'x v. Rhinehart, 167 S. W. 674.

PART PAYMENT.

See Limitation of Actions, § 155.

PASSENGERS.

See Carriers, §§ 247-408.

PAYMENT.

See Accord and Satisfaction; Compromise and
Settlement; Insane Persons, $ 70; Insur-
ance, 602; Limitation of Actions, § 155;
Mortgages, 88 84, 283; Taxation, §§ 524, 543.

II. APPLICATION.

$45 (Tex.Civ.App.) Where a petition in an
action to foreclose several chattel mortgages did
not show how the mortgagor's payments, which
were sufficient to pay the first mortgage, had
been credited, they would be applied to the pay-
ment of the first mortgage.-Marshall v. G. A.
Stowers Furniture Co., 167 S. W. 230.

V. RECOVERY OF PAYMENTS.
$85 (Mo.App.) Where a mistake of $565.75
was made in figuring an inventory by which
plaintiff purchased goods from defendant,
through her husband, acting as her agent, and
it was not claimed that the husband fraudu-
lently received the over payment, it would be
regarded as having been made by mutual mis-

take so as to entitle plaintiff to recover the
same.-Bone v. Friday, 167 S. W. 599.
bank

$85 (Tex.Civ.App.) Where defendant
twice collected a debt which plaintiff oil com-
pany owed a shipper of cotton seed, the bank
was in possession of money of the oil company
which it ought not to keep, and which the oil
company was entitled to recover in a suit for
money had and received.-Jewett State Bank v.
Corsicana Nat. Bank, 167 S. W. 747.

§ 87 (Ky.) Mortgagor's voluntary payment of
1 per cent., in addition to the 6 per cent. rate
on the loan, in consideration of the mortgagee's
surrender of its right to carry the loan to ma-
turity and earn the interest, held not made un-
der duress so as to entitle the mortgagor to re-
cover.-Hamilton v. Kentucky Title Savings
Bank & Trust Co., 167 S. W. 898.

§ 89 (Tex.Civ.App.) Where plaintiff oil com-
pany paid to defendant bank its debt to a ship-
per of cotton seed, and the bank used the bill
of lading to collect a second time for the same
debt, the oil company's act in taking up the
bill entitled it to recover the second payment.
Jewett State Bank v. Corsicana Nat. Bank,
167 S. W. 747.

PENALTIES.

See Carriers, § 20; Commerce, § 47; Costs, §
260; Damages, §§ 78-85; Usury, § 138.

PERSONAL INJURIES.

See Appeal and Error, §§ 1064, 1066, 1068;
Assault and Battery, §§ 27, 39; Attorney and
Client, §§ 143-190; Carriers, §§ 280-348;
Charities, 45; Corporations, § 590; Dam-
ages, §§ 132, 185, 216; Electricity; Evidence,
$ 506; Master and Servant, $$ 88-311;
Municipal Corporations, §§ 763-822; Negli-
gence; Parent and Child, §§ 7, 13; Pleading,
§18; Railroads, §§ 22, 259-401; Release,
17; Street Railroads, §§ 93-117; Trial, 88
48, 191, 251-253, 296.

See Pleading.

PETITION.

PHYSICIANS AND SURGEONS.

See Damages, § 177; Evidence, § 506'; Rape, §
38; Witnesses, § 220.

86 (Tex.Cr.App.) Under Pen. Code 1911, art.
750, information for practicing medicine unlaw-
fully held fatally defective, where it did not al-
lege defendant's residence and that he had not
registered his authority or license in the dis-
trict clerk's office of the county of his residence.
-Young v. State, 167 S. W. 1112.

PLEADING.

See Appeal and Error, §§ 193, 195, 233, 238,
877, 1040, 1042; Appearance, § 13; Car-
riers, 408; Chattel Mortgages, § 287;
Continuance, §§ 14, 30; Contracts, § 335;
Counties, $ 89; Courts, §§ 122, 170, 480;
Damages, $8 143, 158; Death, 8 57; Di-
vorce, 214; Elections, § 286; Equity, §
241; Frauds, Statute of, 160; Guaranty,
§ 86; Highways, § 184; Husband and Wife,
332; Indictment and Information; Injunc-
tion, §§ 114, 118, 122, 231; Insurance, § 645;
Intoxicating Liquors, § 279; Judgment,
18, 85, 101, 251; Justice of the Peace $8
91, 135, 174; Libel and Slander, §§ SO, 94;
Limitation of Actions, §§ 33, 127; Malicious
Prosecution, § 34; Mandamus, §§ 154, 160;
Master and Servant, §§ 256-264; Municipal
Corporations, §§ 122, 816, 978; New Trial,
§ 26; Nuisance, $$ 48, 86; Partnership, §
219 Payment, § 45; Principal and Surety,
§ 101; Sales, §§ 267, 353; Specific Per-

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

formance, 1164; Statutes, § 279; Taxa-
tion, § 592; Trespass to Try Title, § 32;
Trial, 88 250-253; Venue, §§ 32, 77, 78.

I. FORM AND ALLEGATIONS IN

GENERAL.

88 (Mo.) A petition charging fraud which
merely charges fraud without specifications is,
as a general rule, insufficient, as stating a mere
conclusion.-Lee v. Lee, 167 S. W. 1030.

88 (Mo.App.) The allegation of the answer
that at the time of the accident plaintiff's horse
was driven in violation of the ordinance, with-
out alleging in what respect it was being vio-
lated, is a mere conclusion of the pleader.-
Brickell v. Williams, 167 S. W. 607.

§8 (Mo.App.) A pleading alleging that a con-
tract is valid and binding is an allegation of a
mere legal conclusion.-Bird v. Rowell, 167 S.
W. 1172.

§ 8 (Tex.Civ.App.) An allegation in a plea of
privilege that the suit did not come within any
of the exceptions provided by law, authorizing
suit to be brought in the county of Milam or
outside the county of Harris, held a conclusion
of law, and ineffective.-Anderson, Clayton &
Co. v. Terry, 167 S. W. 1.

§ 18 (Ark.) In alleging a cause of action, the
particular grounds upon which plaintiff seeks to
hold defendant liable should be stated with as
much certainty as possible, but more specific
details are to be developed by the testimony.-
Kansas City Southern Ry. Co. v. Leslie, 167
S. W. 83.

§ 18 (Tenn.) Not only may plaintiff allege
that the personal injury for which she sues was
inflicted "on or about" a certain day, but, be-
ing unable to do so, she may not be required
to allege the date with greater particularity,
and may recover on her testimony that the ac-
cident occurred in the month alleged, and to
the best of her recollection on the day alleged.
-May v. Illinois Cent. R. Co., 167 S. W. 477.
§ 21 (Tex.Civ.App.) Allegations of a petition,
in an action for lumber sold, declaring upon a
cause of action for lumber delivered at defend-
ant's special instance and request, were not am-
biguous nor inconsistent with allegations declar-
ing upon a written contract, and hence defend-
ant's exception was properly overruled.-Fink
v. San Augustine Grocery Co., 167 S. W. 35.

§ 22 (Ark.) That portions of a complaint were
redundant, and that it contained unnecessary
details, did not render it defective.-Kansas City
Southern Ry. Co. v. Leslie, 167 S. W. 83.

venue in the county of one's residence, mention-
ed in "articles 1194, 1585, of the Revised Stat-
utes,' instead of articles 1830, 2308, as re-
quired by Rev. St. 1911, art. 1903, existed in the
case, was insufficient.-Anderson, Clayton & Co.
v. Terry, 167 S. W. 1.

§11 (Tex.Civ.App.) On a claim of privilege
it is not necessary to introduce evidence as
to residence which is admitted by the pleadings
of both parties.-Lester v. Hutson, 167 S. W.
321.

(C) Traverses or Denials and Admissions,
§ 120 (Mo.App.) An answer, in terms denying
"each and every material allegation" in the
petition "except such as are hereinafter spe-
cifically admitted," raises no issue except as
to matters subsequently specifically alleged.-
Brickell v. Williams, 167 S. W. 607.

127 (Tex.Civ.App.) Where a paragraph of
the petition alleged that the defendant had
stated that plaintiff had stolen all he raised on
defendant's place, and was a thief, an answer
denying the language used as set forth in that
paragraph, but pleading the truth of any charge
made that the plaintiff had been guilty of fraud-
ulent acquisition of property and conversion
thereof to his own use, is not an admission of
the speaking of the words charged.-Burkhiser
v. Lyons, 167 S. W. 244.

(E) Set-Off, Counterclaim, and Cross-Com-
plaint.

§ 147 (Tex.Civ.App.) A cross-action must
contain allegations which, given every reason-
able intendment, would justify evidence of facts
essential to be shown to obtain a judgment.-
Reserve Loan Life Ins. Co. v. Benson, 167 S.
W. 266.

IV. REPLICATION OR REPLY AND
SUBSEQUENT PLEADINGS.

§ 174 (Mo.App.) Where an answer alleged the
execution of a contract and set out the contract,
and then alleged that it was binding on both
parties thereto, a reply specifically admitting
the contract, followed by a general denial, did
not deny the legal conclusion of the validity of
the contract, but to do so the reply must set up
the facts showing invalidity.-Bird v. Rowell,
167 S. W. 1172.

$180 (Ky.) Where the petition, in an action
to enforce a lien for reconstructing a vessel,
showed that the sum claimed was due under
three contracts of March, May, and August,
1911, and that the contract of March provided
for extra work, a reply to the answer, relying
exclusively on the contract of March, was not a
departure, and a judgment for plaintiff was
not in violation of Civ. Code Prac. §§ 98, 101.-
II. DECLARATION, COMPLAINT, PE- Rounds v. Cloverport Foundry & Machine Co.,
TITION, OR STATEMENT.
167 S. W. 384.

§ 32 (Mo.App.) Where a written contract is
pleaded and set out in full, the facts are stated
from which a legal conclusion follows.-Bird v.
Rowell, 167 S. W. 1172.

§ 49 (Tex.Civ.App.) The designation of an
action as one to remove a cloud does not neces-
sarily make it such, but the character of the
suit is to be determined by the facts alleged
therein.-Lester v. Hutson, 167 S. W. 321.

§ 69 (Tex. Civ.App.) In an action to reform
a policy by inserting the name of plaintiff as
mortgagee and payee, an allegation in the peti-
tion that the person named insured was build-
ing on the premises, and had no interest there-
in at the time of loss or at any time, held not
an admission that such insured had no interest
in the building, so as to avoid the policy for
want of insurable interest.-Western Assur. Co.
v. Hillyer-Deutsch-Jarrett Co., 167 S. W. 816.
III. PLEA OR ANSWER, CROSS-COM.
PLAINT, AND AFFIDAVIT
OF DEFENSE.

(B) Dilatory Pleas and Matter in Abate-

ment.

$104 (Tex.Civ.App.) A plea of privilege, re-

V. DEMURRER OR EXCEPTION.
§193 (Ark.) Where the complaint was suffi-
cient to inferentially show that the land in
suit was the homestead of plaintiff's ancestor,
the defect that it did not directly allege that
fact cannot be questioned by demurrer.-Jarrett
v. Jarrett, 167 S. W. 482.

§ 193 (Mo.App.) The causes of action, joined
in a single count of a petition, being such as,
by separate counts, might, under Rev. St. 1909,
§ 1795, be properly united in the petition, de-
murrer, under section 1800, "that several caus-
es of action have been improperly joined" will
not lie.-De Field v. Harding Dredge Co., 167
S. W. 593; Wilkinson v. Same, Id. 595.

§ 205 (Tex.Civ.App.) Where the causal con-
nection betwen the negligence of the master and
the injury to the servant is sufficiently shown by
reasonable deduction from the facts set up in
the petition, the petition is good against general
demurrer, although a special exception to its

well taken.-Hotel Dieu v. Armendariz, 167 S., fective in not showing causal connection be-
W. 181.

$214 (Mo.) On demurrer, the truth of all
matters well pleaded in a petition is admitted.
-State ex rel. Garesche v. Roach, 167 S. W.
1008; Same v. Drabelle, Id. 1016.

8214 (Tex.Civ.App.) Defendant, demurring or
pleading to the jurisdiction of the court, admits
the facts charged in plaintiff's petition to be
true, and only denies that they present a case
within the jurisdiction of the court.-Key v.
Key, 167 S. W. 173.

tween the master's negligence and the injury,
an answer, which alleged that the proximate
cause of the injuries, if any, was the negligence
of fellow servants, cured the defect in the peti-
tion.-Hotel Dieu v. Armendariz, 167 S. W. 181.
§ 406 (Mo.App.) Where, in an action for a
nuisance, prosecuted after plaintiff's death by
her administrator, both parties tried the case on
the theory that plaintiff's death did not result
from the nuisance, the defect in that the peti-
tion did not show that her death did not result
therefrom was cured.-Roth v. City of St. Jo-

$214 (Tex.Civ.App.) A general demurrer ad-
mits the truth of the allegations of a petition.-seph, 167 S. W. 1155.
Lastinger v. Toyah Valley Irr. Co., 167 S. W.
788.

VI. AMENDED AND SUPPLEMENTAL
PLEADINGS AND REPLEADER.

§ 262 (Ky.) Where an amended answer setting
up additional damages under a counterclaim was
filed several months before trial, plaintiff could
not successfully claim surprise.-Louis P. Hy-
man & Co. v. H. H. Snyder Co., 167 S. W. 146.

XI. MOTIONS.

$423 (Ky.) Though under Civ. Code Prac. §
120, the proper practice is to file any evidence
of indebtedness, upon which an action is found-
ed, failure to do so does not invalidate the
judgment where no objection was made.-
Hughes v. Grogan, 167 S. W. 381.

§ 432 (Tex.Civ.App.) The objection of vari-
ance cannot be raised after verdict.-Western
Union Telegraph Co. v. Taylor, 167 S. W. 289.

§ 433 (Mo.App.) Where defendant, prior to
the rendition of verdict, does not question the
sufficiency or form of the complaint, any de-
fects therein, not vital, are cured by the ver-

dict.-Falloon v. Fenton, 167 S. W. 591.

PLEDGES.

§ 349 (Mo.App.) Where, in an action by a
broker for damages caused by defendant pre-
venting the collection of a commission from a
third person, earned in procuring defendant and
the third person to contract for the exchange See Corporations, § 123.
of their lands, the answer alleged the execution
of a binding contract of exchange, and that de-
fendant was financially able to perform, and

POLICE POWER.

the broker by reply admitted the execution of See Constitutional Law, § 81.
the contract and defendant's financial ability
to comply therewith, but denied every other al-
legation, defendant was entitled to judgment on

the pleadings.-Bird v. Rowell, 167 S. W. 1172. See Insurance.

§ 367 (Ark.) Where the complaint was suffi-
cient to inferentially show that the land in suit

POLICY.

POOL HALLS.

was the homestead of plaintiff's ancestor, the See Licenses, § 7.
defect that it did not directly allege that fact
must be raised by motion to make more certain.
-Jarrett v. Jarrett, 167 S. W. 482.

POPULATION.

POSSESSION.

$368 (Mo.App.) Where causes of action, join- See Evidence, § 12.
ed in a single count of a petition, are such as,
by separate counts, might, under Rev. St. 1909,
§ 1795, be properly united in the petition, the
remedy is by motion for separate statement.-
De Field v. Harding Dredge Co., 167 S. W.
593; Wilkinson v. Same, Id. 595.

XII. ISSUES, PROOF, AND VARIANCE.

8378 (Tex.Civ.App.) A general denial puts
in issue every material fact alleged in the peti-
tion.-Wilkerson & Satterfield v. McMurry, 167
S. W. 275.

$399 (Ky.) Under the express provisions of
Civ. Code Prac. § 131, if the allegation to
which the proof is directed be unproved, not
in some particular or particulars only, but in
its general scope and meaning, it is not a case
of variance, but a failure of proof.-Prestons-
burg Coal Co. v. Wallen, 167 S. W. 395.

XIII. DEFECTS AND OBJECTIONS,
WAIVER, AND AIDER BY VER-
DICT OR JUDGMENT.

§ 402 (Tex.Civ.App.) Allegations in a supple-
mental petition will not cure defects or omis-
sions in the original petition, but such defects
must be cured by amendment.-Fink v. San
Augustine Grocery Co., 167 S. W. 35.

§ 403 (Ky.) Where error in a petition was
corrected by answer, and plaintiff by reply
accepted the correction, any variance between
the petition and the proof, which corresponded
to the allegations of the answer, was imma-
terial. Chesapeake & O. Ry. Co. v. Jesse, 167
S. W. 407.

§ 403 (Tex.Civ.App.) Where a servant's peti-
tion for damages for injuries sustained was de-

See Adverse Possession; Mechanics' Liens, 8
59; Officers, §§ 81, 82; Tenancy in Common,
§ 11.

PRACTICE.

For practice in particular actions and proceed-
ings, see the various specific topics.

PREJUDICE.

See Appeal and Error, §§ 1029-1072; Criminal
Law, 88 1172-1177.

PREMIUMS.

See Insurance, §§ 186, 198.

PRESCRIPTION.

See Adverse Possession; Limitation of Actions.

PRESUMPTIONS.

See Appeal and Error, §§ 907-934; Evidence,
§§ 59-83.

PRIMARY ELECTIONS.

See Elections, § 126.

PRINCIPAL AND AGENT.

See Appeal and Error, § 1050; Attorney and
Client; Brokers; Carriers, § 47; Corpora-
tions, 88 283, 333, 410; Counties, 89;
Estoppel, 856; Evidence, § 427; Injunction,
§ 114; Insurance, §§ 76, 186, 378, 379, 388;
Railroads, § 17.

II. MUTUAL RIGHTS, DUTIES, AND
LIABILITIES.

(B) Compensation and Lien of Agent.
§ 84 (Mo.App.) One suing for commissions for
the sale of oils in certain territory was not
obliged to account for sales made by another
representative of defendant on credit; plaintiff
merely making the deliveries and payment be-
ing made direct to defendant.-Whitaker v. Bell
Oil Co., 167 S. W. 619.

§ 89 (Mo.App.) Evidence in an action for
commissions, in which defendant set up a coun-
terclaim, held to support a verdict for plaintiff
in the amount claimed.-Whitaker v. Bell Oil
Co., 167 S. W. 619.

There was no error in admitting evidence in
an action for commissions as to plaintiff's right
to a certain commission, where the claim was
admitted in the answer.-Id.

There was no error in permitting plaintiff, in
an action for commissions, to inquire of de-
fendant's auditor concerning certain correspond-
ence, where he did not undertake to testify as
to its contents, stating that he could not do so.
-Id.

In an action for commissions for selling oils,
wherein defendant set up a counterclaim for
sales and oil not accounted for, evidence as to
freight and rent paid by plaintiff for defendant
was admissible without being alleged, as bear-
ing on the counterclaim.-Id.

III. RIGHTS AND LIABILITIES AS TO
THIRD PERSONS.

(A) Powers of Agent.

§ 101 (Mo.App.) Where plaintiffs authorized
their agent to deliver certain cattle to defendant,
the agent, in the absence of any agreement be
tween the parties, had apparent authority to
state the terms on which the cattle were so de-
livered.-Cotton v. Gorrell, 167 S. W. 1187.
$104 (Ky.) A sales agent of a foreign corpo-
ration held apparently authorized to warrant
that a pump sold for a particular purpose