The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-10-31
THE OPINIONS.

II
by the supreme court, yesterday:
The Missouri, Kansas and Texas Rail
way company of Texas, appellant, VS..
John ii. Belcher, appellee; certified ques-
tions, in n suit to recover damages for
delay in delivering freight, from Cooke
county, Second district.
Appellee brought this suit to recover,
among other damages, special damages
resulting from the failure of the railway
company to deliver promptly a load of
cotton seed meal, to be used in feeding
cattle. The cattle were being fed ut
Gainesville and the cotton seed meal was
shipped to that point from Sherman, Tex.
Before the bill of lading was signed by
appellants agent in Sherman, appellee
told its agent at Gainesville of the special
damage that would result to him from de-
lay and asked that the shipment be eX-
pedited. The Gainesville agent at once
notified appellants trainmaster by tele-
gram.
Was notice to the agent at Gainesville
notice to the company?
The general rule is that notice to the
agent is notice to the principal
The word agent as used in this rule,
means the person who has power to act
for the principal with reference to the
very subject matter to which the notice
relates and does not include person
who has no such power, though he may
have power to act for the principal with
reference to similar subjects. The words
agent and act are from the same root,
and the above limitation of the use of the
former is inherent in its derivation.
Prima facie, the station agent at Gaines
vile had no power to act for his company
in reference to the making of the contract
of shipment of the car of feed from Sher-
man. The car did not come within the
apDarent scope of his agency until 1t
reached Gainesville. 1t follows that
notice to him was not notice to the COM
pany under the facts of this case. (6O
Texas, 80; 60 Texas 5O7 50 Texas, l2o;
20 S. W., 1057)
Was within the scope of the agency,
of the Gainesville agent, to transmit the
information he received to the agent at
Sherman?
For similar reasons to those noted
above, we are of the opinion that it was
not. We know of no principal of law re-
curing an employee to transmit to another
employee of common employer, informa-
ton given him by stranger in reference
to business beyond the scope of his
agency, or that will impute knowledge of
such information to the other employe,
or to the master, upon failure to so
transmit.
We therefore answer both branches of
the first question in the negative.
The second and third questions pro-
bounded are not based upon any facts
found by the court of civil appeals, as be-
ing shown by the record before them,
but the second is based upon the SUPPOSE
ton that the trainmaster had notice, and
the third upon the supposition that he
had no notice before the contract was
signed. We are not authorized by the
statute to pass upon any question certi-
fed, unless it arises i'll Il case pending be-
fore court of civil appeals. 1t is evident
that the two supposed states OF facts
upon which the two questions are based
can not co-eXist, and that, therefore, one
or the other tissues of law presented
does not "arise in case pending before
a court of civil appeals" Under the cir
cumstances, it would be an assumption OF
jurisdiction for us to answer either of the
questions. Opinion by Denman, ).
John Chace, plaintiff in error, VS.. VIM.
b. Gregg ct al, defendants in error;
suit to remove cloud from title; from
Harris county, First district.
Darius Gregg and Mary "A. Gregg were
husband and wife. AT his death Gregg
made will in which he assumed to dis
pose of his separate property and also
Of the community property belonging to
himself and wife. This will divided the
property between Mrs. Gregg and VIM.
h. Gregg, ST., n son of the testator by
II former marriage. Mrs. Gregg elected
to take under the will and subsequently
agreed upon a partition of the property
between herself and stepson. This par
tition was made by warranty deeds from
each party to the other. In the will
there was an express condition that if
Mrs. Gregg should die without issue and
in possession of any of the property so de-
yised to her. then that said property
should go to VIM. Gregg or to his heirs.
Mrs. Gregg died without issue and by
will attempted to devise her property to
Chace, her second husband.
Chase claims under this will and the
defendants claim through their father,
VIM. Gregg. The property in controver
sy is part of that disposed of by the will
of Darius Gregg and by deed of parti-
ton assigned to Mrs. Gregg. There
was a verdict and judgment for defend |
ants in the court below and this Judgment |
was affirmed by the court of civil ap- |
peals.
The writ of error in this case was |
granted upon the belief that the court |
of civil appeals erred in holding that the |
minor defendants were not estopped by |
the warranty of their father, but upon |
careful examination we have concluded |
that there was no error in this ruling. |
The children of VIM. b. Gregg did not
take the property as the heirs of their
father, but under the will of their grand
father. Therefore, the warranty of
VIM. b. Gregg could not estop them to
claim this property unless it can be shown
that valuable consideration passed from
Mary A. Chase to VIM. b. Gregg, and
that they had received from Gregg prop
erty equal to the consideration so paid
In this case it is shown that there was
no consideration passing from Mrs
Chase to Gregg. He received from her
nothing but that to which he was entitled
before, and for this reason the warranty
could not operate as an estoppel upon
his children, there being no liability on
their part on account of such warranty.
The deed from VIM. b. Gregg to Mrs.
Chase could not under the law have con-