apply for and secure the loan, and thereafter reconvey the homestead to appellant. Adopting this plan of securing the loan, appellants, on the 4th day of March, 1889, without consideration, executed their deed to the 310 acres of land to R. S. Taylor, who was the father of A. Jones Taylor, and who, on the same day, made written application to said. Texas Loan Agency for a loan of $2000, and thereafter executed the deed of trust above named to secure it.

One of the vital issues upon the trial below was whether the Texas Loan Agency had notice of the homestead character of the land in controversy, if it was in fact homestead as claimed by appellants. It is insisted that the loan agency was not effected with Kerr's knowledge of the homestead character, if any, of the land in controversy, for the reason that Kerr and appellants, A. Jones Taylor and wife, conspired together to deceive and defraud the loan agency in the matter of the loan involved.

On the last trial the case was submitted upon special issues requested by the several parties to the action. The eighth and ninth special issues submitted at the request of appellee and the answers of the jury thereto are as follows: "Eighth. Did A. Jones Taylor and wife cause a fictitious or simulated deed to be made by themselves to R. S. Taylor and wife for the purpose of deceiving the Texas Loan Agency and procuring in that way a loan of $2000 on the property which the loan agency would otherwise not have made to them?" To which the jury answered, "Yes." "Ninth. If the above question is answered in the affirmative, then did S. F. Kerr help, aid and have notice of such facts and advise said parties and assist them in procuring the loan from the Texas Loan Agency under such conditions?" To which the jury answered, "Yes."

The fourth special issue, submitted at the request of the appellants, and the answer of the jury thereto, are as follows: "Fourth. Is it not a fact that said deed of March 4, 1889, was made for the purpose only of destroying the homestead character in the land, so as to get it in shape to secure the loan of $2000?" To which the jury answered, "Yes."

Appellants insist that these several findings, when considered as a whole, render the verdict of the jury contradictory, indefinite, uncertain and ambiguous, and error is therefore assigned to the rendition of the judgment upon the verdict. We think the assignment must be sustained.

As stated in the opinion by Justice Hunter on the first appeal, the facts in the particular under consideration are similar to those in the case of Peoples Building and Loan Association v. Dailey, 17 Texas Civ. App., 38, 42 S. W. Rep., 364, and the answers of the jury quoted in our judgment render it uncertain whether they intended to find such fraudulent purpose, such collusive acting, on the part of Kerr and the Taylors as will relieve the loan agency of the effect of Kerr's knowledge under well settled rules. See Association v. Parham, 80 Texas,

526; Association v. Dailey, supra, and opinions on former appeals herein.

Mere knowledge on Kerr's part that appellants conveyed their homestead to R. S. Taylor without consideration, to the end that they might thereby procure a loan that they could not otherwise procure, will not relieve the loan company of the legal effect of Kerr's knowledge that the land accepted as security was appellants' homestead, if so it was. The purpose to deceive and to defraud must exist. This involves the idea that Kerr knew and appellants knew, at the time, that the security to the extent of the homestead was a nullity, and that to that extent the loan company would be kept in ignorance of the true facts and thereby deprived of security, and that so knowing the parties named pursued the method adopted for the purpose of thereby illegally obtaining money from the loan company which could not otherwise be obtained. The facts must be such as in legal effect to constitute Kerr the agent of appellants for the purpose intended and secured, otherwise the principal, the loan agency, is liable for the acts of its agent, and the agent's knowledge must be imputed to his principal.

If it be said that the answer of the jury to the eighth special issue submitted at appellee's instance is to be construed as a finding that appellants acted with intent to deceive and defraud the loan company, then such finding seems in conflict with the finding on the fourth issue, submitted at appellants' request, to the effect that the sole purpose of A. Jones Taylor and wife in making the deed to R. S. Taylor on March 4, 1899, was to destroy the homestead character of the land in controversy and render such land subject to secure the loan in contemplation. Emphasis is given the finding last mentioned by evidence to the effect that some if not all of the parties acted in good faith, believing that by the transmutations of paper title made, the constitutional inhibition against mortgaging the homestead could be avoided. The very form in which the issues were requested and submitted seems complicated. The vital issues we have discussed, if therein presented, seem so involved and incumbered with other facts, some of which were undisputed but upon which findings were required, as to leave us in doubt whether the jury fully understood the issues or the precise import of their verdict thereon. We think all of the material issuable facts should be clearly submitted to the end that no cause shall exist for a misapprehension of the findings of the jury.

The questions urged before us relating to a purchase on appellee's part without notice of appellants' claim are not presented in the pleadings, or so submitted or supported by the findings, as to enable us to dispose of them or give other direction than a reversal of the judgment, which is now ordered.

Reversed and remanded.

TEXAS & PACIFIC RAILWAY COMPANY ET AL. V. T. J. GOGGIN.

Decided December 5, 1903.

1.-Evidence-Admissions-Abandoned Pleadings.

Abandoned pleadings containing admissions against interest are admissible in evidence, and it is immaterial, upon the question of admissibility, that they are not signed or sworn to by the party sought to be bound. 2.-Same-Practice on Appeal.

Where evidence has been improperly excluded the rule on appeal is, that in order to hold that such error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted therefrom.

Appeal from the District Court of Taylor. Tried below before Hon. J. H. Calhoun.

Stanley, Spoonts & Thompson, J. H. Barwise, Jr., and J. M. Wagstaff, for appellants.

Cunningham & Oliver and Legett & Kirby, for appellee.

SPEER, ASSOCIATE JUSTICE.-Appellee sued appellants to recover for injuries to a shipment of cattle. In his original petition is contained this allegation: "That by reason of such negligence and rough switching by defendants, and by reason of the long delay caused by the negligence of the defendants' agents, said cattle were beaten, bruised, killed, crippled, gaunted and starved, and otherwise damaged to such an extent that 126 head were killed and died from the effects of such negligence, and the remaining 510 head that survived said negligent treatment were beaten, bruised gaunted, starved and crippled to such an extent that they were damaged $4 per head, and in the aggregate $2040. That the 126 head of cattle that were killed and died from the effects of the negligence aforesaid were nearly all cows with calf, and were reasonably worth on the market at Memphis, Texas, $25 per head, and in the aggregate $3150, making the total damage to said train load of cattle. $5190."

By the first amended original petition it is alleged: "That by reason of said negligence and rough handling of said train of cattle by defendants and by reason of the long delays caused by the negligence of defendants, said cattle were beaten, bruised, crippled, gaunted, starved, many of them killed, and otherwise damaged to such an extent that 136 head were killed and died from the effects of such negligence, and the remaining 500 head that survived said negligent treatment were beaten, bruised, gaunted, starved and crippled and otherwise greatly damaged.

"That said train load of cattle in the condition in which they should. and would have arrived at Memphis, Texas, by the exercise of proper care and prompt shipment on the part of defendants, would have sold on the market at Memphis, Texas, on the date of their arrival at $25

per head, and in the aggregate at $15,900. That in the damaged condition in which said cattle arrived at Memphis, Texas, the 136 head that were dead and died from said improper treatment were without value. That 75 head of the remaining 500 were so badly crippled and hurt by defendants as to only have a market value at Memphis, Texas, on date of their arrival of $8 per head, and the remaining 425 head were crippled, gaunted, drawn, skinned and otherwise injured by defendants so as to only have a market value of $15 per head on date of their arrival at Memphis, Texas, making a total damage to said cattle by said negligence of defendants in the sum of $8925."

By yet another amendment, being the pleading upon which plaintiff went to trial, the injuries and damages were thus pleaded: "That by reason of such negligent and rough handling of said train of cattle by defendants, and by reason of the long delays caused by the negligence. of defendants, and by reason of the long delays without eating and without rest and the exposure to the cold, mud and rain as aforesaid, said cattle were beaten, bruised, crippled, gaunted, starved, exhausted, drawn, emaciated, many of them killed, and otherwise damaged to such an extent that 136 head were killed and died from the effects of such negligence, and the remaining 500 head that survived said negligent treatment were beaten, bruised, gaunted, starved, crippled, drawn, exhausted, emaciated and otherwise greatly damaged to such an extent that said train of cattle were damaged thereby in the aggregate $9525. "That said train load of cattle were very high grade cattle, and in the condition in which they should and would have arrived in Memphis, Texas, by the exercise of ordinary and proper care and promptness on the part of defendants, would have sold on the market at Memphis, Texas, upon their arrival there at $25 per head, and four of said cattle, being high bred bulls, would have sold for $150 each, and in the aggregate at $16,500. That in the damaged condition in which said cattle. arrived at Memphis, Texas, the 136 head that were dead, and died from said improper treatment, including said four bulls, were without value. That 75 head of the remaining 500 were so badly crippled, bruised and otherwise damaged and hurt by defendants as to have only a market value at Memphis, Texas, upon their arrival there, of $8 per head, and the remaining 425 head were crippled, gaunted, drawn, skinned, bruised and otherwise injured and damaged by defendants by said improper treatment so as to have only a market value of $15 per head on their arrival at Memphis, Texas, making a total damage to said cattle by said negligence of defendant in the sum of $9525.”

Upon the trial the defendants offered in evidence the original petition, as well as the first amended original petition, "for the purpose of showing the condition of plaintiff's cattle and for the purpose of showing the number claimed to be killed and the causes which he alleges produced the damage and injury," and to the introduction of which the plaintiff objected, "for the reason that the same were immaterial, and were not signed or sworn to by the plaintiff," which objections were

sustained by the court and the evidence excluded. This was error. That abandoned pleadings containing material admissions against interest are admissible in evidence is no longer an open question in this State. And it is immaterial, upon the question of admissibility, that such pleadings are not signed or sworn to by the party sought to be bound. Barrett v. Featherstone, 89 Texas, 567; Houston E. & W. T. Ry. Co. v. De Walt, 96 Texas, 121, 70 S. W. Rep., 531, 5 Texas Ct. Rep., 1006; Felton v. Talley, 31 Texas Civ. App., 336 6 Texas Ct. Rep., 473; Prouty v. Musquiz, 94 Texas, 87, 59 S. W. Rep., 568; Southern Pac. Co. v. Wellington, 57 S. W. Rep., 856; Jordan v. Young, 56 S. W. Rep., 762; Galveston, H. & S. A. Ry. Co. v. Eckles, 54 S. W. Rep., 651. The relevancy of the proposed testimony fully appears from the above excerpts from the pleadings, and after a careful reading of the testimony we can not say the error was harmless.

Reversed and remanded.

ON MOTION FOR REHEARING.

It is urged upon us that, if the matter upon which we have reversed the judgment in this case was error, nevertheless we should not reverse unless we were able to say that the error affected the result or prejudiced the appellant. But we do not so understand the rule. Our Supreme Court, in Missouri, K. & T. Ry. Co. v. Hannig, 91 Texas, 350, say: "The true rule is, that in such a case, in order to hold that the error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted from the admission of the evidence."

We have heretofore followed the rule laid down in the Hannig case. Fort Worth Iron Works v. Stokes, infra p. 8 Texas Ct. Rep., 245.

Filed January 9, 1904.

Motion overruled.