business prevents its consideration, or it is continued by consent of parties. Rev. St. art. 1269; Peveler v. Peveler, 54 Tex. 53; Watson v. Baker, 67 Tex. 48, 2 S. W. 375; Blum v. Strong, 71 Tex. 329, 6 S. W. 167; Cavin v. Hill, 83 Tex. 73, 18 S. W. 323.

2. The location of valid certificates, belonging to appellees, upon the land, and the return of the field notes to the general land office within the time required by law, secured to them a vested right to the land; and the fact that they demanded no patent to the land for 18 years does not operate as an abandonment of their title, nor bar their right to recover upon it. Such a title will support an action of trespass to try title, and therefore stale demand cannot be interposed against it. Duren v. Railway Co., 86 Tex. 287, 24 S. W. 258. Besides, this court has held that the right, which may have once existed in this state, to plead stale demand as a defense, has been superseded by our statute of limitations. Land Co. v. Hyland (decided at this term) 28 S. W. 206.

3. If articles 3854 and 3856 of Sayles' Civil Statutes were in force when appellees' surveys were made, they ought not to be held to invalidate said surveys. These articles require official surveyors to perform certain designated duties before receiving files and making surveys; but they do not declare that surveys made before the performance of such duties shall be void. They were enacted to secure a proper and orderly administration of a public office, but not to inflict penalties or forfeitures upon those who had dealings with the office.

4. Appellant is not entitled to protection as an innocent purchaser. The prior locations under which appellees claim the land were, when appellant's rights accrued, of record in the official surveyor's office, and also in the general land office. It was held in Nicholson v. Horton, 23 Tex. 47, Wilson v. Williams, 25 Tex. 64, and Wyllie v. Wynne, 26 Tex. 44, that such records charge persons subsequently attempting to acquire the land with notice. In Wimberly v. Pabst, 55 Tex. 587, cited by appellant, it was held that a purchaser from a patentee was not chargeable with constructive notice of the equitable rights of others, based upon the fact that the certificate upon which the patent issued was issued to the patentee be cause he was a married man, although the certificate, on its face, disclosed that fact. In other words, it was held in that case that a purchaser from a patentee is not required to examine the certificate upon which the patent issued, to see if it had been issued to the true owner of the certificate. In that case there was but one location,—but one title. In each of the cases above cited, as in the one under consideration, there were two separate and distinct locations, and it was held that, as the land office and the surveyor's records disclosed the existence of the senior title or right, persons claiming

under junior titles were charged with notice. Whether or not this difference in the facts required the application of different rules of law we need not determine, because, even if the earlier cases were impliedly overruled by Wimberly v. Pabst, we think the rule they announced was restored by the present constitution. By section 2 of article 14 of that instrument, it is provided, among other things, that no land certificate shall be "located, surveyed or patented upon any land titled or equitably owned under color of title from the sovereignty of the state. evidence of the appropriation of which is on the county records or in the general land office, or when the appropriation is evidenced by occupation of the owner, or of some person holding for him." When the rights protected by this provision of the constitution are disclosed by the records of the general land office, or of the county in which the land is situated, it was doubtless intended by the framers of the constitution that such records should be as effectual upon the question of notice as would actual possession. The expression "color of title" had a well-defined statutory meaning when the foregoing provision was placed in the constitution; and we think, as therein used, it was intended to have its statutory signification, which includes claims based upon unpatented certificate locations. Rev. St. art. 3192; Stafford v. King, 30 Tex. 257; Spofford v. Bennett, 55 Tex. 293. It is true that the case of Wimberly v. Pabst, supra, was decided after the adoption of the present constitution; but the sale under which the ques tion of innocent purchaser arose in that case was made before the existence of that instrument. We do not wish to be under stood as holding that that case, properly construed, conflicts with any provision of the constitution.

The district court correctly decided this case, and its judgment will be affirmed. Affirmed.

MISAU

SALE OF Goods - RESCISSION BY SELLER
STATEMENTS AS TO FINANCIAL STANDING
THORITY OF AGENT-ACTION AGAINST ASSIGNER
FOR CREDITORS.

1. In July a merchant made a statement to a commercial agency as to his assets and liabilities, and in the following February the same statement was submitted by his son and bookkeeper, who had full charge of his business. Both statements were made as bases of credit, and showed an excess of $55.000 over liabilities. In the following June plaintiffs sold goods to said merchant in person, without asking information as to his condition, and in July the merchant assigned. His business reputation was good, and he had always paid his bills promptly. Held, that plaintiffs were justified in relying upon said second statement, and were not bound to seek for further information.

2. Where an agent who has authority to make statements regarding his principal's busi

ness condition makes a false statement through ignorance of the facts, without the principal's knowledge, such statement will have the same effect as if made by the principal.

3. In an action against an assignee for goods sold to the assignor, which could not have been placed in stock long before the assignment, where said assignee refused to make any effort to identify said goods or to allow plaintiffs to do so, and did not undertake to prove that he did not have them when demand for them was made, or to otherwise account for them, he cannot object to a finding that the goods passed into his hands.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by Strouse Bros. against M. Schram and Ben Levy and others to recover the value of certain goods fraudulently obtained. Judgment for plaintiffs, and defendants appeal. Affirmed.

Labatt & Labatt and Robt. G. Street, for appellants. Lockhart & Painter, for appellees.

WILLIAMS, J. The nature of this appeal is thus stated by appellants: This suit was instituted by Strouse Bros., merchants of Baltimore and New York, against M. Schram and Ben Levy, of Galveston, for the value of goods alleged to have been obtained by the defendant Schram, late merchant, from plaintiffs, on the faith of false representations as to his financial condition, contained in statement made to the commercial agency of R. G. Dun & Co., which statement was furnished them by the agency, and relied on by them in making the sale. Judgment was sought against the defendant Ben Levy on the ground that these goods had been turned over to him as trustee by M. Schram to secure other creditors, and because, while still in his possession, demand was made on him for their return by plaintiffs, and refused. Defendants pleaded a general denial, also specially traversing the allegations of the petition. The case was tried without a jury. There was a judgment against Schram for $2,575, the amount sued for, and against Levy for $1,672, the amount of the goods found by the court to have been in his hands at the time of demand made on him. There were separate conclusions of law and fact duly excepted to, and the case is brought here by appeal.

The first assignment of error asserts that the evidence does not sustain the conclusion of the trial judge that plaintiff's relied, in making sale to Schram, on the statement of his financial condition made to the commercial agency. The testimony of the agent of plaintiffs, who acted upon the order of Schram for goods, is direct and pointed to the effect that he examined and relied on such statement, and sold the goods on faith of the facts therein represented. That there was actual reliance on the statement, the uncontradicted evidence of this witness establishes.

The more serious question is presented by

In

the other proposition of appellants,-that plaintiffs were not justified, under the circumstances, in placing reliance upon the statement when they made the last sale of goods, which the court held them entitled to recover, but should have sought other information as to Schram's condition at the time of such sale. The evidence shows that in July, 1891, a statement was made by Schram's son and bookkeeper to Dun's Commercial Agency, purporting to give the assets and liabilities of the elder Schram. the latter part of February, 1892, application was made by Dun & Co. by letter, from New York, addressed to Schram at Galveston, for another statement, and in reply the son sent a copy of the previous statement of July, signed “M. Schram, per Mayer" (the bookkeeper), accompanied by this letter: "Herewith please find report as per your request of February 25, 1892. You will notice the statement is from July 15, 1891, and, if I am not mistaken, we furnished your office in our city a statement that month. We take stock, generally, on July 15th, when I will furnish you with another statement, if so desired. [Signed] M. Schram, per D. W. Schram." Both statements purported to be made as basis of credit, and showed an excess over liabilities of $55,000. We think the last statement should be received as a representation that it showed the then condition of Schram, except as it might be modified by variation in the stock on hand. During the spring of 1892, Schram purchased of appellees, upon orders, goods which went into his business in Galveston, and which the court below did not allow appellees to recover, because the evidence did not show that they went into the hands of the assignee, Levy. About June 30, 1892, Schram, in person, bought of plaintiffs, in New York, the goods for which recovery was obtained below. Appellees asked him for no information concerning his condition, but examined the statements made to Dun & Co., and acted upon them. Schram did not know that such statements had been made by his son and bookkeeper, but the latter were, when they made the statements, in full control of his business in Galveston, and were authorized to make them. On the 31st day of July, 1892, Schram executed a deed by which he conveyed to appellant Levy, in trust for preferred creditors, all of his stock, which was all of the property owned by him available to his creditors. This instrument disclosed debts to a large amount, that were not mentioned in the statements to Dun & Co., most of which are termed by Schram his "private debts," unconnected with his mercantile business. The goods conveyed in the deed were not sufficient to pay the preferred debts, besides which there were claims unprovided for to a large amount. When these debts were incurred is not specifically shown, but there is evidence that between the dates of the statements to Dun & Co. and his failure nothing

transpired to account for the great difference between the financial condition indicated by such statements and the actual situation of his affairs when he executed the mortgage. It is a fair inference from the evidence that the statements, when made, misrepresented the state of Schram's assets and liabilities, making him appear the owner of a handsome balance of assets over liabilities, when in fact his debts were more than sufficient to absorb his estate. It is fair to add that the testimony shows that what is called his "private indebtedness" did not appear upon the books of the mercantile business, and was in fact unknown to the son and bookkeeper when the reports were made to Dun & Co., and that Schram himself knew nothing of the reports having been made.

The con

It is claimed that because of the time which elapsed between the making of the statements and the sale, and the personal presence of Schram when the goods were sold, the plaintiffs should not have acted upon the reports of the mercantile agency as sufficient, but should have sought of Schram, or from other sources, information as to his solvency at the time of sale. The evidence shows nothing that should have excited suspicion on the part of the sellers. Schram had been in business a long time, had dealt with them and met his bills promptly, and was generally supposed to be prospering. The reports so represented him. fidence inspired in the minds of sellers by an examination of such reports, being consistent with the reputation and previous history of the purchaser, was natural and reasonable. It may be true that, where such reports are substantially true when made, sales cannot be avoided merely because subsequent changes of condition, such asought to be anticipated as likely to happen, are not made known at the time of the purchase. It might be conceded, further, that the mere failure to communicate any change taking place subsequent to the making of the report, if the latter were correct when made, would not constitute such a fraud as to entitle the vendor to a rescission, though this is by no means clear. Still, when it appears that the seller is misled by a misstatement, such as those shown in this case, he ought not to be required to anticipate any such condition as that which the evidence de velops to have been the actual state of Schram's business, nor to make inquiry which the facts did not suggest. The case of Bank v. Bamberger, 77 Tex. 49, 13 S. W. 959, as well as the authorities there referred to, fully sustain the decision of the court below on this point.

ments. To be complete and true, the statements should have embraced all of his indebtedness, whether upon one account or another. In investing them with such authority he was bound to furnish them with the information necessary to enable them to exercise it properly. They acted in his stead; and if they did not know all that he knew of his affairs, so far as a knowledge of them was essential to the truthfulness and completeness of the statement, their act is none the less his act, and must have its proper effect upon his transaction with plaintiffs. The fact found by the court below, and shown by the evidence, that he did not know of the existence of the reports, may tend to show that he had no actual intention, by means of them, to defraud the plaintiffs. But it remains that the statements were legally his acts, and, as plaintiffs were misled by them, he ought not to be heard to say that he was ignorant of them. Morrison v. Adoue, 76 Tex. 261, 13 S. W. 166. He was bound to know what his agents had done in the exercise of authority given to them by himself.

Another objection made to the judgment by appellants' proposition under their eighth and ninth assignments of error does not seem to be raised by those assignments. It is that the evidence did not show that the goods, for the value of which judgment was rendered, went into the hands of Levy, the trustee, or that he converted them. The court below held that both of these facts sufficiently appeared, and this finding is sus tained. The goods were shipped from New York in July, and could not have arrived in Galveston and have been placed in stock long before the mortgage was executed. The trustee declined to make any effort to identify them, or to permit plaintiffs to do so, and did not undertake, in the case, to show they were not still on hand when he took charge, and when demand for them was made, or to otherwise account for them. He cannot complain if the court indulged the natural inference. The judgment is affirmed.

GALVESTON, H. & S. A. RY. CO. v. PARR. (Court of Civil Appeals of Texas. Oct. 25,

1894.)

It is urged, also, that the statements to the son and bookkeeper should not be treated as those of Schram, especially as the debtedness not stated was unconnected with the business in which alone they were agents. But the authority which they had from him involved the making of such state

3. Where the petition in an action for destruction of crops by surface water alleges that defendant so constructed its road as to divert

the water from its natural flow, and cause it to flow on plaintiff's land, an instruction that it was defendant's duty to construct culverts or sluices for drainage of the land, if error, is not ground for reversal.

4. Plaintiff can recover for destruction of crops by surface water because of the improper construction of a railroad, though he bought the land after the road was built.

Appeal from district court, Fayette county; H. Teichmueller, Judge.

Action by John T. Parr against the Galveston, Harrisburg & San Antonio Railway Company for destruction of crops by surface water. Judgment for plaintiff. Defendant appeals. Affirmed.

Brown, Lane & Jackson, for appellant.

PLEASANTS, J. The appellee, on the 10th day of April, 1893, instituted suit in the district court of Fayette county against the appellant for the recovery of damages for injuries to plaintiff's land; the destruction of growing crops of corn and cotton upon said land; also for extra labor imposed upon plaintiff in the preparation of his land and the planting of his crops, resulting from overflow of said land in the years 1889 and 1890, and which overflows were caused, as alleged by the plaintiff, by the negligence of the defendant in the faulty construction of its road through plaintiff's farm; the alleged fault or defect in the construction of the road, and in the ditches and sluices incident thereto, consisting in directing water from its natural flow upon and across plaintiff's land. The petition alleged injury to about 40 acres of the land, from overflow thereof, caused by the diverting of waters as aforesaid, on the 15th of April, 1889, and it also averred the destruction, from overflows resulting from same cause of said 40 acres of land, of three crops of growing corn and cotton on the land, in the year 1889, of the aggregate value of $600, and two crops of growing corn and one crop of growing cotton in the year 1890, of the aggregate value of $275. The plaintiff further alleged that, by reason of said overflow in said years, he was hindered and delayed in the cultivation of his land, and, by the hardness of the land after the waters retired from its surface, he was compelled to perform much labor in preparing the land for planting, which he would not have performed but for said overflows, and that said extra labors and the hindrances and delays aforesaid in the cultivation of plaintiff's land damaged him in the sum of $600, for all of which sums judgment was prayed. The defendant answered by general demurrer, general denial, and statute of limitations of two years. Upon trial of the cause, the court instructed the jury that, as plaintiff had sold his farm before the institution of the suit, he could not recover for any injury which may have been done to the land through negligence of the defendant, and verdict and judgment were rendered for

plaintiff for $250, and, new trial having been refused defendant, it appealed to this court. Our conclusions upon the facts are: First. That, while the evidence is conflicting upon the issue of negligence by defendant in the construction of its road, the evidence is amply sufficient to sustain the finding of the affirmative of that issue by the jury. Second. That plaintiff, in the year 1889, and subsequent to April 15th of that year, lost, from overflow of 40 acres of his land, two crops of growing corn and two of growing cotton; and that in the year 1890 plaintiff lost upon same land, from overflow, two crops of growing corn and one crop of growing cotton; and that the aggregate value of said crops, the value of each being estimated at the time of its destruction, was $675. Third. That the several overflows which destroyed said crops were caused by the negligent construction of defendant's road. Fourth, That after the destruction of said crops, the plaintiff planted said land in corn and cotton, both in the year 1889 and 1890; and that in each of said years the crops so planted matured, and were harvested by plaintiff. Fifth. That, by said overflows, plaintiff was hindered and delayed in planting and cultivating his farm, and that his land was sogged and baked by reason of the overflows, and thereby rendered more difficult to plow and cultivate, and by reason of all of which extra labor was imposed upon plaintiff. Upon these conclusions of fact, we are unanimously agreed that the judgment should be affirmed.

The first assignment of error is as follows: "The court erred in admitting the testimony complained of in its bill of exceptions No. 1, for the reason that the manner adopted by said testimony to prove up the value of the crops at the time they were alleged to have been destroyed in plaintiff's petition was not the proper manner of proving the same, and was misleading to the jury, and for the further reason that, under such testimony, the jury was authorized to find the value of three different crops for 1889, and two for 1890, as alleged to have been destroyed upon the same ground, and thus greatly increasing any reasonable damage that could have been sustained by the plaintiff by reason of the wrongs alleged." We do not understand that a witness called on to testify as to the value of a growing crop, who gives his estimate of the value of the crop at the time of its destruction, is prohibited from stating, in de tail, cost of planting, cultivating, harvesting, and putting the crop upon the market, and its probable yield, and its value when placed upon the market; and, as we understand his testimony, this is just what was done by the plaintiff. We think the evidence was legitimate. As to the other objection to the plaintiff's testimony, presented in this assignment, two members of the court are of the opinion that a rendering may be had for the destruction of any number of growing

crops of corn or cotton caused by overflows, resulting from the negligence of a railway company in the construction of its road, notwithstanding the fact that in the same year in which such destruction occurs, and subsequent thereto, there is grown and gathered a crop upon the same land, and that the measure of damages for the loss of each crop is its value at the time of its destruction, regardless of the value of the crop raised and gathered upon the land. While the third member of the court does not assent to this proposition, believing that the measure of damages in such case is not the value of the crop destroyed, yet he thinks the evidence was harmless, as, from the facts of the case and the pleadings of the plaintiff, the verdict and judgment are for less than the plaintiff was entitled to recover had a proper rule for measuring the damages been given to the jury.

The second assignment of error is as follows: "The court erred in the first paragraph of its charge to the jury, which is as follows, to wit: 'It is the duty of every railroad company, in the construction of its roadbed, to so construct necessary culverts or sluices as the natural lay of the land requires for the necessary drainage therof. A railroad failing to comply with this requirement, and thereby occasioning overflows over the land adjacent, is responsible to the owners thereof for every injury that may be done thereby from time to time to their crops,'for the reasons (1) that said paragraph was not applicable to the facts in this case, and was calculated to and did mislead the jury to the prejudice of the defendant; (2) because it instructs the jury that, in constructing a roadbed, the defendant was required to construct necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof, when the law is that the railroad shall so construct its roadbed as to permit the waters to flow as they formerly did, and so as not to injure the landowner." While the plaintiff does not allege that there was a failure on the part of the defendant to construct necessary sluices or culverts for the drainage of plaintiff's land, the petition does allege that defendant had so constructed its road as to divert the water from its natural flow, and cause it to flow upon plaintiff's land. We think the error of the charge, if it be erroneous, is not one which should authorize a reversal of the case.

The defect complained of in the charge under the third assignment of error is clearly such, we think, as should have been called to the attention of the court, and an appropriate charge for curing the defect requested by the defendant; and, not having done this, the defendant cannot now be heard to complain.

The fourth and fifth assignments will not be discussed, as the points presented in them have been considered in discussing the first

and third assignments of error. From our view of the case, as indicated in our conclusion upon the facts, and from what we have said in discussing the third assignment of error, the fifth, sixth, and seventh assignments need not be noticed.

The eighth error assigned is the refusal of the court to instruct the jury as requested by defendant, as follows: "In this cause, at the request of defendant, you are charged that if you find from the evidence that plaintiff acquired title to the tract of land in question on the 17th day of July, 1888, and on said date the railroad of the defendant was then constructed, with its ditches, culverts, etc., as they have existed since that time, and that, since he acquired such title, no changes have been made in same by the defendant to plaintiff's injury, you will find for the defendant, that plaintiff recover nothing." We have considered this assignment, and we cannot give our assent to the propositions submitted thereunder. They are not in accordance with the law as expounded in this state, and the court correctly refused the requested charge. If a railway undertakes to change the flowing of surface water, it must see to it that damage does not result to the landowner. If surface water is collected into artificial channels, and thereby in increased quantities thrown upon the land of another, the person who causes this to be done will be liable for such injury as results therefrom. Railway Co. v. Helsley, 62 Tex. 595. We are unable to see why the plaintiff should be denied the right to recover for injuries sustained by him through the negligence of the railway in the construction of its road because the road was constructed before the plaintiff acquired title to the land. The railway company, for such negligence as is complained of by the plaintiff, is liable for every injury to the landowner sustained by him subsequent to the construction of the road, and of which such negligence is the proximate cause. The judgment is affirmed. Affirmed.