much matter not bearing on the particular assignment of error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. 742.*] 4. LIMITATION OF ACTIONS (§ 199*)—EVIDENCE -QUESTION FOR JURY. In a suit against railroad companies on a contract for shipment of cotton to foreign ports, evidence held to raise an issue as to whether maturity of plaintiff's claim was postponed, as affecting the running of limitations, by a custom preventing such claims from becoming due until expiration of a reasonable time after presentation. [Ed. Note.-For other cases, see Limitation of Actions, Dec. Dig. § 199.*] 5. LIMITATION OF ACTIONS (§ 24*)-WRITTEN FREIGHT CONTRACTS. An action against railroads on a written contract to carry freight to a foreign port is governed by the four, and not the two, years statute of limitations. [Ed. Note.-For other cases, see Limitation of Actions, Dec. Dig. § 24.*] 6. TRIAL ( 200*)-INSTRUCTIONS-LEGAL EFFECT OF WRITINGS. In an action against railroads on a freight contract, the court properly instructed as to the legal effect of telegrams which disclosed the making of the contract sued on. [Ed. Note. For other cases, see Trial, Cent. Dig. 471; Dec. Dig. § 200.*] Appeal from District Court, Grayson County; B. L. Jones, Judge. Action by the Birge-Forbes Company against the St. Louis, San Francisco & Texas Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed. Andrews, Ball & Streetman and Head, Smith, Hare & Head, for appellants. J. A. L. Wolfe and J. F. Holt, for appellee. TALBOT, J. This is an action prosecuted by the appellee against the appellants, the St. Louis, San Francisco & Texas Railway Company and the St. Louis & San Francisco Railroad Company, to recover the sum of $1,812, with interest. It is alleged, in substance, that in September, 1904, Birge-Forbes Company made a written contract with appellants, whereby appellants agreed and undertook to transport 20,000 bales of cotton through to the European ports of Liverpool, Bremen, and Havre from Sherman, Tex., and Ada, Okl., at the through rate of 92 cents per 100 pounds from Sherman and $1.02 per 100 from Ada; that the rates stated included shipment from the domestic to the foreign seaports, and by means of what is called "first-class liners," but that the appellants had the right to ship by inferior class of liners, provided they would protect the said Birge-Forbes Company in the extra amount it had to pay for insurance by reason of this fact, which is called, in the language of the trade, "equalization of insurance"; that by first-class liners was meant a line of steamships which, by reason of high-class owner ship, construction, etc., carried the lowest rate of insurance on its cargo, and by "second-class" and "tramps" were meant inferior classes of ships, which carried a lower rate of freight, which appellants would have to pay; that said cotton was shipped from the domestic to the foreign seaports by a class of ships inferior to first-class liners, by reason of which fact Birge-Forbes Company had to pay for insurance $1,812.60 more than they would have had to pay, had the cotton moved via first-class liners; that after the making of said contract, and after said Birge-Forbes Company ceased to do the shipping of said cotton thereunder, the business, and the appellee, the Birge-Forbes Company, was incorporated and took over and acquired all the assets of the said Birge-Forbes Company, and is the equitable The owner and holder of the claim sued on. defenses pleaded were a general denial and the two and four year statutes of limitation. In reply to the pleas of limitation, appellee alleged that the contract was in writing; that under the general custom and usages of the cotton trade, well known to all parties, claims of this character would not become due and payable until the carrier had a reasonable time to investigate the claims after their presentation, and that such reasonable time is one year after presentation of claim, and that the claim herein was presented immediately after the payment of the last item of insurance; that defendant requested much more than one year in which to make such investigation, and represented to plaintiff, in order to get the time in which to investigate said claim extended, that defendants, in event suit would have to be filed, would not plead the statutes of limitation, and relying upon said representation the plaintiff did not file this suit until the time it was filed, and defendants are now estopped from pleading limitation. A trial before a jury on the 14th day of May, 1910, resulted in a verdict and judgment in favor of appellee for $1,812.60, principal, and $465.73, interest, to reverse which this appeal is prosecuted. [1] The first assignment of error complains of the court's refusal to instruct the jury to return a verdict for appellants. The proposition advanced under this assignment is that "both the petition and the undisputed evidence disclose that this suit is based upon an alleged special contract between a shipper and a common carrier for the transportation of cotton, controlled by the provisions of the act of Congress known as the 'Interstate Commerce Law,' and upon terms not authorized by said act, and that said alleged contract is therefore illegal, null, and void, and can furnish no basis for the recovery here sought." We do not think this proposition is sustained by the record. On the contrary, we think, as contended by appellee, that neither the pleadings nor the evidence discloses that the suit is based upon a contract violative of the provisions of the interstate commerce law. It appears that the contract entered into stipulated for a through rate and through shipment of the cotton in question from Sherman, Tex., and Ada, Okl., to domestic seaports, and thence to foreign seaports; appellee having no contractual relation whatever with the ocean carrier. This being true, the contract, we think, was entire ly legal, even though it be true, which does not appear, that the rate paid by appellants for the ocean voyage reduced the inland rate to less than the tariff rate from the point of origin to the domestic seaport. H. G. Wilson, appellants' foreign freight agent, and who represented them in the making of the contract upon which this suit is based, testified, in substance, that he had made a contract with steamships covering ocean voyage of cotton; that he had made several contracts with steamships; that he had made a contract with steamships at the time he made the Birge-Forbes contract, and that he applied part of the 20,000-bale contract to his steamship contracts, and that he applied some of the cotton to contract not then made. The witness Birge testified: "I didn't get any better railroad rate than anybody else. The variation in these rates does not affect the railroad. I supposed the railroad got its full proportion, but I had nothing to do with that." We think the instant case distinguishable from Armour v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681; the distinquishing characteristics being, as pointed out by counsel for appellees, that Armour had made the contract for the ocean voyage of his products, and the carrier had no contractual relation with the steamships. In this case appellants made the contract for the ocean voyage of the cotton, and appellee had no contractual relation whatsoever with the ocean carrier, and knew nothing of the rates to be paid for the ocean voyage. The Armour Case is a typical rebate case. Armour and the carrier entered into a contract for shipment of a very large quantity of his products from his packing houses to the domestic seaports for a certain rate. After making this contract and after it had become binding on both parties, the railroad company proceeded to increase the rate between said points, seeking to make other packers pay the increased rate, thus giving to Armour a very decided advantage in rates. Armour made the contracts for the ocean voyage, as stated, informing the inland carrier of the rate agreed upon for the ocean shipment, and the inland carrier in the bills of lading given added the two rates and gave through bill of lading, which was undoubtedly a device to conceal the amount he was paying for the inland voyage. We do not, therefore, regard the Armour Case as authority controlling the decision of the case at bar. Nor do we think either of the other cases cited by appellants is in point. In the present case the proof, as we understand it, shows that there was no tariff promulgated covering the shipments of the appellee. And, in view of the fact that the ocean rates are shown to be fluctuating and changing almost daily, it is quite difficult to see how a tariff could be filed covering such shipments as are involved in this case. In the case of the Texas & Pacific Railway Co. v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940, cited by appellee, it is held, in effect, that a contract for shipment from a foreign country, even though the proportion of the freight rate for the inland shipment from the domestic seaport to the interior destination in the United States is less than the regular tariff covering shipments between the inland seaport and such interior destination, does not violate the interstate commission law. If, therefore, a through contract infringing upon the tariff, as in the case referred to, is valid when applied to imports, there seems to be no good reason why it should not be held to be valid when applied to exports. [2] Again, the appellee's petition disclosed a legal contract, and the burden of establishing that it was illegal was upon the ap pellants. This would require appropriate pleadings and proof of the facts showing such illegality. Such was not done by appellants, as we understand the record. We agree with the view that the record does not definitely show what the appellants paid for the ocean voyage. Their agent, Wilson, testified that he based his estimate of the fare for the ocean voyage on first-class liners, and that the estimate proved to be about correct, and, as we construe his testimony, it shows what appellants paid for first-class service, and not what they actually paid in this case; that he (Wilson) estimated that what they paid for first-class service ran from 26 cents to 33 cents. He says: "This 32 cents that I took into consideration I figured would be just about the average prevailing rate for first-class liners for the season, so far as first-class service was concerned; in other words, I took into consideration first-class rate." It may be added that we have discovered no testimony in the record showing that the cotton shipped would have moved from either Sherman, Tex., or Ada, Okl., via the points shown in the interstate commerce tariff sheets, introduced in evidence by the appellants. We conclude the assignment should be overruled. [3] The second assignment of error complains of that portion of the court's charge wherein the jury was instructed, in effect, that if, at the time the contract of shipment was made, it was the rule and custom of all parties to such contracts for a railway company to have a reasonable time, after it had been notified by the parties shipping the cotton that said parties had a claim for the this, too, was in writing. Appellant's agent, Wilson, testified: "The negotiations subsequent to the contract with reference to the reduction of rate to the best of my recollection were by telegraph. I haven't copies of these telegrams. They were, of course, part of the office files. Probably there was several days of telegraphic correspondence which probably resulted in the reduction of the rate and advice to that effect to the equalization of insurance, to investigate said [6] Nor did the court err in charging the the jury of the issue as to whether the ma-jury that "the various telegrams between turity of appellee's claim was postponed, so Birge-Forbes Company and H. G. Wilson, that suit could not have been commenced representative of the defendant railway comthereon until after April 22, 1905, by reason panies, disclose that a contract was made of a custom which prevented such claims between Birge-Forbes Company and the said from becoming due until the expiration of a Wilson for the defendant companies, for the reasonable time after actual presentation. transportation of 20,000 bales of cotton to This assignment is not supported, as is re- various foreign ports, said transportation to quired by the rules prescribed for briefing a be made during the months of September, case, by such a statement of the evidence or October, November, 1904, for 92 cents per proceedings as is necessary and sufficient to hundred pounds of shipment." Such was the explain and support the proposition, and is legal effect of said telegrams, and it became therefore not entitled to consideration. The the duty of the court to so instruct the statement is: "All of the evidence bearing jury. The meaning of the contract as to the upon the existence and effect of the alleged controverted issues in the case was properly custom is set forth in the testimony of N.│submitted to the jury in the general charge, B. Birge and H. G. Wilson, copied in state- and is not complained of. Whether the cotment to first proposition, first assignment above." The testimony of these witnesses comprises about 40 pages of appellant's brief, very much of which bears upon matters having no connection with or relation to the rule and custom referred to in the court's charge, and to find the testimony relating to this particular issue would require the reading of this entire testimony. This we are not required to do. [4] But, waiving this matter and looking to the testimony, we find it was sufficient to authorize the submission of the issue. The witness Birge testified very positively to the existence of the rule and custom mentioned in the court's charge, and the record discloses no denial of it by the witness Wilson or any other witness, so far as we have been able to discover. Indeed, Mr. Wilson himself testified, in effect, that under the usual course of dealings the appellants were not expected to pay a claim like the one sued on, until they had a reasonable time within which to investigate it; that such was the usual and customary course in matters of that character. [5] There was no error in refusing to charge the jury, as requested by appellants, that the undisputed evidence shows that plaintiff's account accrued more than two years before the same was sued on, and was therefore barred by the statute of limitation. We think the four, and not the two, year statute of limitation applies to the cause of action set forth in appellee's petition. A written contract is declared on, and the proof shows such contract. It is true a part of the cotton was moved under a subsequent ton moved at the basis rate of 92 cents, or under a subsequent arrangement, both contracts were in writing, and their meaning as to rate undisputed. The answer to the fifth assignment is that it appears beyond controversy, we think, that this suit was filed on the 14th day of May, 1908, and not on April 22, 1909. The statement of the court in his charge that it was filed on the latter date was a clerical error, or is not supported by the record. By a cross-assignment of error, the appellee complains of the trial court's refusal to instruct the jury, at its request, in substance, that if the plaintiff presented the claim sued on to defendant, and defendant requested further time in which to investigate said claim, and at the same time promised and agreed that if such time was granted defendant would not interpose the statute of limitation as a defense to any suit plaintiff might institute on account of said claim, and that by such promise and agreement plaintiff was induced to grant such time and delay the institution of such suit, then the time so granted should not be considered in passing on the question of limitation. Having held that appellee's claim, without reference to the agreement here mentioned, was not barred by the statute of limitation, and that the judgment of the lower court should be affirmed, it becomes unnecessary to pass on this assignment. Our conclusion is that the verdict is sustained by the evidence, that none of the assignments point out reversible error, and that therefore the judgment should be affirmed. It is accordingly so ordered. LEWIS et al. v. BLOUNT et al. (Court of Civil Appeals of Texas. Galveston. May 27, 1911.) 1. INSANE PERSONS (8 61*)-CONVEYANCESVALIDITY. A conveyance by an insane person is voidable, but not absolutely void, though it can be attacked by the grantor or his legal representative and the property recovered from an innocent purchaser for value without notice. [Ed. Note.-For other cases, see Insane Persons, Cent. Dig. §§ 93-99; Dec. Dig. § 61.*] 2. TRUSTS (§ 95*)-CONSTRUCTIVE TRUSTS. Where defendants, posing as the friends of one mentally incapable, fraudulently procured a conveyance of the incompetent's land for an insufficient consideration, and they knew of the incompetent's incapacity, they are constructive trustees, and, if they dispose of the land, the representatives of the incompetent may hold them liable in damages, instead of pursuing the land. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 145-147; Dec. Dig. § 95.*] Appeal from District Court, Nacogdoches County; James I. Perkins, Judge. Action by Frank Lewis and others against E. A. Blount and others. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Reversed and remanded. D. M. Short & Sons, for appellants. Ingraham, Middlebrook & Hodges, June C. Harris, Geo. S. King, and S. W. Blount, for appellees. whole and indemnified against loss by reason of the warranties under which he purchased, and said suit should be brought in Hartley county, where such land is situated, and this court has no jurisdiction as a matter of law to try the real issue in said case, the title to said land; and of this they pray the judgment of the court." The general demurrer and special exception were sustained, and, the plaintiff declining to amend, the suit was dismissed, from which judgment plaintiffs prosecute this appeal. The petition alleges, in substance, that plaintiffs are sole heirs at law and legal representatives of Henry Lewis, who died intestate on September 23, 1907; that on June 22, 1906, the said Henry Lewis was the owner in fee simple of an undivided interest of 2,220 acres in 2,726 acres of land in Hartley county, Tex., which is alleged to have been at that date of the value of $25,000. The petition then alleges as follows: "That on the said 22d day of June, 1906, and on the 8th day of June, 1906, and for many weeks immediately previous thereto, and from the date last mentioned up to the time of his death, the said Henry Lewis was greatly enfeebled both in body and mind by reason of disease, old age, and accidents incident to a long life, and by reason thereof was easily susceptible to the influence, devices, arts, and persuasions of others, and was then and there afflicted with mental inREESE, J. This is an action by Frank firmity as rendered him unable to guard Lewis and others, heirs and legal representa- against imposition, and incapable to make a tives of Henry Lewis, deceased, against E. contract such as is hereinafter mentioned. A. Blount, Ben T. Wilson, and Robert Lind- That immediately previous to the 8th day of sey, to recover damages growing out of the June, 1906, the defendant E. A. Blount had deceit and fraud on the part of defendants been personally acquainted with the said J. whereby the said Henry Lewis had been in- H. Lewis and Unity F. Lewis, the aforesaid duced to convey valuable lands for a sum father and mother, respectively, of the delargely less than their value. S. C. Diggle, ceased, Henry Lewis, during their lifetime to whom said defendants are alleged to have and up to the time of their respective deaths, sold the land, and S. B. Kibler, to whom and had been personally and intimately acDiggle had in turn sold it, were also made quainted and associated with the said Henparties defendant. Plaintiff prayed for judg- ry Lewis for more than 40 years, all the ment against defendants Wilson, Lindsey, while knowing his brothers and sisters and Blount, and Diggle for their damages, and the estate left to their children by the said against defendant Kibler for the land. De- J. H. Lewis and wife, Unity F. Lewis, and fendants Diggle and Kibler were nonresi- especially with the tract of land above dedents, and, not having been served and not scribed and with its value, location, its ownappearing, plaintiffs dismissed as to them. ership, and with the country in which it is To the petition defendants Blount, Wilson, situated, during all of the time immediately and Lindsey interposed a general demurrer preceding the 8th day of June, 1906, for and also a special exception, as follows: more than 30 years, and especially with the "Further specially excepting, these defend- fact that said tract of land had gradually adants say that said petition shows on its face vanced in value from the time it was locatthat if these plaintiffs have any rights ed by virtue of said certificate of said J. H. against these defendants, or their codefend- Lewis, at which time it was worth less than ants herein, it is to recover the title and pos- $1 per acre, until the middle of June, 1906, session of the land described in plaintiffs' pe- when it was worth more than $7 per acre. tition, and not for the recovery of damages That said tract of land is located in Hartley against these defendants, as it is nowhere county, Tex., and during all the time the alleged in said petition that the last alleged said Henry Lewis lived in San Augustine purchaser of said land has placed valuable county, Tex., a distance of more than 700 improvements thereon, or cannot be made miles from the location of said land. That *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes for several years prior to the aforesaid to the 8th day of June, 1906, the said E. A. death of Henry Lewis, deceased, which occurred at his home in San Augustine county, at the advanced age of 78 years, old age, ill health, and mental imbecility had deprived him of the capacity to manage his affairs with prudence or to go from place to place such as was demanded by the necessities of his business, a fact which was well known to the defendant E. A. Blount, on the 8th day of June, 1906, and immediately preceding said 8th day of June, 1906, as well as to the defendant Robert Lindsey. That on and immediately preceding the said 8th day of June, 1906, and for several years previous thereto, the defendant Robert Lindsey was and had been intimately known to and associated with the said Henry Lewis and had ingratiated himself into the confidence and good will of the said Henry Lewis to such an extent that the said Robert Lindsey had great influence over the said Henry Lewis, and the said Henry Lewis by reason thereof relied upon the judgment and the honor and integrity of the said Robert Lindsey, which the said Henry Lewis supposed the said Robert Lindsey to possess, and was easily susceptible to the influence and persuasion of the said Robert Lindsey, all of which was well known to the defendant Robert Lindsey, as well as to the defendant E. A. Blount. "That the defendant Ben T. Wilson on the date last mentioned resided in the county and town of Nacogdoches, some 40 miles from the town of San Augustine where the said Henry Lewis resided, and was then and there utterly unknown to the said Henry Lewis in person or by reputation, and the said Ben T. Wilson being then and there au obscure young man, without pecuniary ability to purchase the tract of land above mentioned, which fact was also well known to all of the defendants, except S. C. Diggle and S. B. Kibler, both of whom were unknown to the said Henry Lewis, but who were known as men of means able to purchase for its full value the land above mentioned, to their codefendant, and especially to the defendant E. A. Blount. That for several months immediately previous to the 8th day of June, 1906, and from thence to his death, the said Henry Lewis was physically incapable of leaving his home town and going from thence anywhere for any purpose, and was thereby deprived of the means of knowing what was transpiring concerning his property, and especially that part of it above mentioned. That the defendants above named, except S. C. Diggle and S. B. Kibler, some time prior to the 8th day of June, 1906, conceived the idea of acquiring from the said Henry Lewis his said interest in the above-described land for an inadequate price by reason of the mental incapacity, want of information, and undue influence which the said Robert Lindsey had power to exercise Blount and the said Robert Lindsey, defendants, had entered into an agreement with the defendant S. C. Diggle, by the terms of which the defendant E. A. Blount should have the right within a reasonable time (the exact time being unknown to these plaintiffs) to convey to the said S. C. Diggle the tract of land above mentioned for a sum of money more than $6 per acre (the exact amount being unknown to plaintiffs) to be paid in cash by the defendant Diggle to the defendant Blount upon the delivery of the deed from said Blount conveying said land and an abstract of title showing ownership in said Blount in said land, exclusive of said deed, all of which was well known to all of the defendants, except S. B. Kibler, and all of which was unknown to the said Henry Lewis, and knowledge of which could not have been ascertained by said Henry Lewis by the use of reasonable diligence. That $7 per acre was in fact at said time a fair price for said land, and the same could have been sold for more than $6 per acre, all of which was well known to all of the defendants and was unknown to the said Henry Lewis by reason of the facts aforesaid, and knowledge of which could not have been ascertained by him because of his aforesaid condition and situation; the said defendants, except S. B. Kibler, well knowing at the time that the said Henry Lewis was under the impression that said land was worth in the market not more than $2.50 per acre and was ignorant that it was worth more or could have been sold for more than $6 per acre, and was without capacity either to acquire said knowledge or to appreciate its meaning and consequence to himself. "That, in pursuance of the design aforesaid made as aforesaid by the defendants aforesaid, the defendant Robert Lindsey, on or about the 8th day of June, 1906, went from his home in Nacogdoches county, Tex., to the home of the said Henry Lewis in San Augustine county, Tex., and then and there in San Augustine county, Tex., represented to the said Henry Lewis that Ben T. Wilson resided in Western Texas and was engaged in the cattle business and desired to pur chase from him, the said Lewis, the said tract of land above mentioned, for the purpose of using the same as a pasture for his cattle, and that the land could be sold to the said Ben T. Wilson for that purpose alone at a price not exceeding $2.50 per acre, which was a good price for said land at that time, and could not be sold at that price for any other purpose, which said statements upon the part of the defendant Lindsey to the said Henry Lewis were made in the pursuance of the said design to acquire said property for an inadequate price, and were then and there intended to deceive, and did deceive, the said Henry Lewis, who then and there believed said statements to be true and |