such as appellee contracted for, but did | The jury found that the appellant failed to constitute an unsafe and dangerous appli- use ordinary care in hanging the swing, that ance that was a real and veritable trap for appellee, when he endeavored to use it in a proper and careful manner, which he was doing at the time it fell. the appellee did use ordinary care to ascer- Appellant answered by general denial, and specially that it advertised the swings for sale, and advertised to hang them free of charge to the purchaser, but said advertisement formed no part of any contract of sale with purchasers of such swings, and that the free hooks and free hanging of swings for each purchaser when desired, as advertised, was but a gratuity or contribution to purchaser, and wholly without consideration, and that the hanging of the swing and furnishing of the hooks therefor was a gratuity by the appellant to the appellee in his said purchase of the swing; that the swing was hung by it with ordinary care on appellee's porch; that the raf- "The promise of a gratuitous service, although ters in the porch were concealed by the ceil- not enforceable as a promise, involves liability ing timbers, and that the rafters of the to use ordinary care and skill in performance." porch were defective and insufficient to sustain the swing, and which defects were concealed from it by the porch ceiling; that the appellee was charged with notice of all of such defects, and assumed all risks under the gratuity aforesaid. It denied liability, and alleged that the negligent use of the swing by the appellee contributed to the accident. [1, 2] Twenty-one assignments of error are found in the brief, but many of them present in different form the same question. They will not, therefore, be taken up and discussed in detail. Appellant first complains of the court's action in refusing to give a special charge directing the jury to return a verdict in its favor. The proposition is: That "the petition basing the right of recovery upon breach of warranty to safely hang the swing as a part of the consideration of the sale of the swing and the evidence showing the hanging of the swing to be free of charge and a gratuity by the appellant, the petition does not support the judgment; that the averment of the cause of action based upon breach of contract and warranty is not supported by a liability arising upon a gratuitous service." The peremptory instruction requested was correctly refused. The appellee did not rest his case alone upon the allegation that appellant had breached its warranty to safely hang the swing. He alleged, independently of that claim, that appellant, having agreed to hang and having hung the swing, was guilty of negligence in hanging it; that such negligence proximately caused his injury, and for that reason he was entitled to recover. The case was submitted to the jury, upon ample testimony to authorize it, upon this issue of negligence; the claim based on the alleged warranty not being submitted in any form whatever. This had the effect to withdraw from the consideration of the jury any question of the appellant's lia The rule is thus stated in 9 In Bailey v. Walker, 29 Mo. 407, the court, after announcing the well-established rule that a promise, to support an action, must be founded on a sufficient consideration, said: "If a man without any consideration promises sued for such failure; but if he does undertake to do a thing, and fails to do it, he cannot be it, and by negligence does it in a manner to cause loss to him for whom he is acting, he will be bound to make good that loss." Likewise the Supreme Court of New York in Thorne v. Deas, 4 Johns. (N. Y.) 84, held that an action will not lie for nonfeasance of a gratuitous act, but stated the principle we think applicable here thus: "If the party who makes this engagement, enamiss, through the want of due care, by which ters upon the execution of" it "and does it damage ensues to the other party, an action will lie for this misfeasance." The witness Hal Howard testified that he had been vice president of the appellant, and that he had also acted as salesman; that he made the sale of the swing in question to appellee, and that he told appellee that the swing would be hung free; that they were hanging the swings at that time without any extra charge. He further said: ience of our customers; that was one of our "We hung these swings free for the convenways of advertising, securing business. In making this sale we intended it to be just as that advertisement said, the swing to be hung free of used toward inviting or securing the volume of cost; that was the inducement that the house trade." That he appreciated the duty imposed upon appellant by such an undertaking is plainly shown by this further statement: "We meant that that swing should be hung with reasonable safety; that reasonable care should be exercised by our men hanging it, to hang it reasonably safe." We do not wish to be understood as holding that the evidence fails to show that the undertaking of appellant to hang the swing it. The judgment of the trial court, for the reasons stated, being supported, whether there was or was not any such consideration, it is useless to decide that question. [3, 4] There was no material error in refusing to give appellant's special charge, to the effect that the burden of proof was on the appellee to show want of negligence on his part under special issue No. 2 in the main charge. The case, as hereinbefore stat ed, was submitted on special issues, and the court instructed the jury that: "The burden of proof is on the plaintiff to make out his case by a preponderance of the evidence; this the law requires him to do, to entitle him to recover." This was sufficient. If for any reason the special charge should have been given, the error, if any, in refusing it, was not at all calculated to cause the jury to render an improper verdict. [5] The next contention is that the trial court erred in refusing to give the following special charge requested by appellant: "You are instructed that the undertaking by the defendant corporation to hang the swing alleged was beyond the scope of its charter powers, and was an ultra vires act, and that no liability can legally attach to said corporation for any damages that may have resulted therefrom." We think there is no merit in this contention. The appellant was engaged in selling furniture and swings, and the hanging of the swing in question was an act reasonably necessary and usually incident to the prosecution of its business. That appellant so regarded it is clearly manifested by the testimony of Mr. Howard, appellant's vice president, to the effect: As said by this court in Phoenix Land Co. v. Exall, 159 S. W. 486, the doctrine of ultra vires, "when invoked for or against a corporation, should not be allowed to prevail when it would defeat the ends of justice or work a legal wrong." The hanging of swings, as disclosed by the record, was regarded by appellant, and evidently was, a natural and profitable incident to its authorized business, and it cannot here avail itself of the plea of ultra vires. [6] The admission of the evidence referred to in the eighteenth assignment of error furnishes no sufficient ground for a reversal of the case. The assignment, however, relates to different and unrelated matters, is multifarious, and really not entitled to consideration. Among other things complained of in the assignment is the admission of testimony of the appellee and his wife to the effect that at and before the accident the appellee had a permit or license from the state to act as insurance agent for the American Life Insurance Company, and that he had suffered pecuniary loss by reason of inability to work for a considerable period of time as a result of his injury; the objection to the testimony being that such fact was not provable by oral testimony, since the original license, or certified copy thereof, from the insurance commissioner, was the best evidence. The objection was not well taken in this case. As pointed out by counsel, the appellee proved, as a predicate for the admission of the parol evidence objected to, that appellee had such license from the state and that the same had been lost or destroyed. There are no degrees of secondary evidence, and under the showing made the parol evidence was admissible. That a great many of appellant's customers were women; that their husbands would come home late, tired and that appellant hoped to put up these swings and relieve them of that extra trouble; that "we thought in doing so we would We have carefully examined all the assigngain their appreciation, which would be evidenc- ments. We think none of them disclose reed later in buying goods there. The Rick Fur-versible error, and the judgment of the disniture Company wanted them to buy goods trict court is therefore affirmed. there. These advertisements were business transactions of ours." Affirmed. such as appellee contracted for, but did | The jury found that the appellant failed to constitute an unsafe and dangerous appli- use ordinary care in hanging the swing, that ance that was a real and veritable trap for the appellee did use ordinary care to ascerappellee, when he endeavored to use it in a tain whether or not the swing had been safeproper and careful manner, which he was ly hung, that appellee's leg was broken as a doing at the time it fell. result of the falling of the swing, that appellee was not guilty of contributory negligence, and that he suffered damages in the sum of $950. These were material issues raised by the pleadings and the evidence, and the jury's findings upon them clearly authorized the judgment rendered. This is true, even though it should be conceded that the hanging of the swing was a pure gratuity. Having undertaken to hang the swing, appellant thereby bound itself to exercise ordinary care to make it reasonably safe for the use to which appellee intended to put it. This view is supported by authorities cited by appellee. Cyc. 310: Appellant answered by general denial, and specially that it advertised the swings for sale, and advertised to hang them free of charge to the purchaser, but said advertisement formed no part of any contract of sale with purchasers of such swings, and that the free hooks and free hanging of swings for each purchaser when desired, as advertised, was but a gratuity or contribution to purchaser, and wholly without consideration, and that the hanging of the swing and furnishing of the hooks therefor was a gratuity by the appellant to the appellee in his said purchase of the swing; that the swing was hung by it with ordinary care on appellee's porch; that the raf- "The promise of a gratuitous service, although ters in the porch were concealed by the ceil- not enforceable as a promise, involves liability ing timbers, and that the rafters of the to use ordinary care and skill in performance." porch were defective and insufficient to sustain the swing, and which defects were concealed from it by the porch ceiling; that the appellee was charged with notice of all of such defects, and assumed all risks under the gratuity aforesaid. It denied liability, and alleged that the negligent use of the swing by the appellee contributed to the accident. The rule is thus stated in 9 In Bailey v. Walker, 29 Mo. 407, the court, after announcing the well-established rule that a promise, to support an action, must be founded on a sufficient consideration, said: "If a man without any consideration promises to do a thing, and fails to do it, he cannot be sued for such failure; but if he does undertake it, and by negligence does it in a manner to cause loss to him for whom he is acting, he will be bound to make good that loss." [1, 2] Twenty-one assignments of error are Likewise the Supreme Court of New York found in the brief, but many of them present in Thorne v. Deas, 4 Johns. (N. Y.) 84, held in different form the same question. They that an action will not lie for nonfeaswill not, therefore, be taken up and discuss-ance of a gratuitous act, but stated the prined in detail. Appellant first complains of the court's action in refusing to give a special charge directing the jury to return a verdict in its favor. The proposition is: That "the petition basing the right of recovery upon breach of warranty to safely hang the swing as a part of the consideration of the sale of the swing and the evidence showing the hanging of the swing to be free of charge and a gratuity by the appellant, the petition does not support the judgment; that the averment of the cause of action based upon breach of contract and warranty is not supported by a liability arising upon a gratuitous service." The peremptory instruction requested was correctly refused. The appellee did not rest his case alone upon the allegation that appellant had breached its warranty to safely hang the swing. He alleged, independently of that claim, that appellant, having agreed to hang and having hung the swing, was guilty of negligence in hanging it; that such negligence proximately caused his injury, and for that reason he was entitled to recover. The case was submitted to the Jury, upon ample testimony to authorize it, upon this issue of negligence; the claim based on the alleged warranty not being submitted in any form whatever. This had the effect to withdraw from the consideration of the jury any question of the appellant's lia ciple we think applicable here thus: "If the party who makes this engagement, enamiss, through the want of due care, by which ters upon the execution of" it "and does it damage ensues to the other party, an action will lie for this misfeasance." The witness Hal Howard testified that he had been vice president of the appellant, and that he had also acted as salesman; that he made the sale of the swing in question to appellee, and that he told appellee that the swing would be hung free; that they were hanging the swings at that time without any extra charge. He further said: ience of our customers; that was one of our "We hung these swings free for the convenways of advertising, securing business. In making this sale we intended it to be just as that advertisement said, the swing to be hung free of cost; that was the inducement that the house used toward inviting or securing the volume of trade." That he appreciated the duty imposed upon appellant by such an undertaking is plainly shown by this further statement: "We meant that that swing should be hung with reasonable safety; that reasonable care should be exercised by our men hanging it, to hang it reasonably safe." We do not wish to be understood as holding that the evidence fails to show that the undertaking of appellant to hang the swing it. The judgment of the trial court, for the reasons stated, being supported, whether there was or was not any such consideration, it is useless to decide that question. [3, 4] There was no material error in refusing to give appellant's special charge, to the effect that the burden of proof was on the appellee to show want of negligence on his part under special issue No. 2 in the main charge. The case, as hereinbefore stated, was submitted on special issues, and the court instructed the jury that: "The burden of proof is on the plaintiff to make out his case by a preponderance of the evidence; this the law requires him to do, to entitle him to recover.' 99 This was sufficient. If for any reason the special charge should have been given, the error, if any, in refusing it, was not at all calculated to cause the jury to render an improper verdict. [5] The next contention is that the trial court erred in refusing to give the followIng special charge requested by appellant: "You are instructed that the undertaking by the defendant corporation to hang the swing alleged was beyond the scope of its charter powers, and was an ultra vires act, and that no liability can legally attach to said corporation for any damages that may have resulted therefrom." We think there is no merit in this contention. The appellant was engaged in selling furniture and swings, and the hanging of the swing in question was an act reasonably necessary and usually incident to the prosecution of its business. That appellant so regarded it is clearly manifested by the tesfimony of Mr. Howard, appellant's vice president, to the effect: That a great many of appellant's customers were women; that their husbands would come home late, tired and that appellant hoped to put up these swings and relieve them of that extra trouble; that "we thought in doing so we would gain their appreciation, which would be evidenced later in buying goods there. The Rick Furniture Company wanted them to buy goods there. These advertisements were business transactions of ours." As said by this court in Phoenix Land Co. v. Exall, 159 S. W. 486, the doctrine of ultra vires, "when invoked for or against a corporation, should not be allowed to prevail when it would defeat the ends of justice or work a legal wrong." The hanging of swings, as disclosed by the record, was regarded by appellant, and evidently was, a natural and profitable incident to its authorized business, and it cannot here avail itself of the plea of ultra vires. [6] The admission of the evidence referred to in the eighteenth assignment of error furnishes no sufficient ground for a reversal of the case. The assignment, however, relates to different and unrelated matters, is multifarious, and really not entitled to consideration. Among other things complained of in the assignment is the admission of testimony of the appellee and his wife to the effect that at and before the accident the appellee had a permit or license from the state to act as insurance agent for the American Life Insurance Company, and that he had suffered pecuniary loss by reason of inability to work for a considerable period of time as a result of his injury; the objection to the testimony being that such fact was not provable by oral testimony, since the original license, or certified copy thereof, from the insurance commissioner, was the best evidence. The objection was not well taken in this case. As pointed out by counsel, the appellee proved, as a predicate for the admission of the parol evidence objected to, that appellee had such license from the state and that the same had been lost or destroyed. There are no degrees of secondary evidence, and under the showing made the parol evidence was admissible. We have carefully examined all the assignments. We think none of them disclose reversible error, and the judgment of the district court is therefore affirmed. Affirmed. BROOKE, J. The appellee instituted this HOUSTON OIL CO. OF TEXAS v. BROWN. action in trespass to try title against the (No. 281.) (Court of Civil Appeals of Texas. Beaumont. Dec. 28, 1917. Rehearing Denied April 3, 1918.) 1. ADVERSE POSSESSION 114(2) BOUNDARIES SUFFICIENCY OF EVIDENCE. Evidence held sufficient to support a finding that plaintiff in trespass to try title, claiming by adverse possession, had constructed her buildings within the boundaries of defendant's land. 2. BOUNDARIES 35(2) - SURVEYS EVI DENCE. Testimony of an old settler was admissible to show that calls in a grant were consistent with the footsteps of the surveyor. 3. BOUNDARIES 25-SURVEYS. Senior surveys control junior surveys. 4. ADVERSE POSSESSION 68-POSSESSION. Possession is adverse, within the statute, although entry on land is made with no original right, but only for the purpose of acquiring limitation and making a home. 5. ADVERSE POSSESSION 45-APPOINTMENT OF RECEIVER-EFFECT. Appointment of a receiver for a corporation does not stop the running of limitations against the corporation as to one holding land of the corporation adversely. 6. ADVERSE POSSESSION 114(2)-EXTENT OF CLAIM. Evidence held not to show that one claiming land adversely claimed only to specified bound aries, so as to render judgment for an undivided 160 acres erroneous. 7. TRIAL 133(2)—IMPROPER ARGUMENT. Argument in trespass to try title, "Are you going to allow the H. Oil Company of Texas to move these lines where they want them to be? If you do, there may come a time when it will come and move your lines around your lands"-although highly improper, was not reversible, where the jury was admonished, and there was nothing to show it was influenced thereby. 8. APPEAL AND ERROR 882(8)-HARMLESS ERROR EVIDENCE. Where both sides introduced similar evidence, without objection, one party cannot later complain that the evidence was improper. 9. BOUNDARIES 35(1) SURVEYS DENCE. It was proper to testify where lines under surveys were actually run upon the ground, and where improvements were located with reference to such lines. 10. TRIAL 244(1) SUBMISSION OF ISSUES -REQUESTED CHARGES. Where the court gave all the material issues in its charge, it was not error to refuse a special charge that sought to single out and submit a question to the jury that was not controlling. 11. ADVERSE POSSESSION TENT OF POSSESSION. 96-ISSUES-EX In action where plaintiff claimed title to 160 acres of land by adverse possession, the question of encroachment not being raised, the distance plaintiff was on defendant's land was immaterial. Appeal from District Court, Tyler County; W. R. Blackshear, Judge. Trespass to try title by Mrs. M. J. Brown against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed. Kennerly, Williams, Lee & Hill, of Houston, for appellant. Tom F. Coleman and Thomas & Wheat, all of Woodville, for appellee. appellant to recover an undivided 160 acres out of the M. L. Abbott 960-acre survey, in Tyler county. Her claim of title was under the 10-years statute of limitations. Appellant pleaded not guilty, and, by way of crossaction, asked for judgment against appellee for all of the Abbott survey. On the trial of the case it was agreed that the appellant owned the title to all of the Abbott survey, unless the appellee had acquired title to a part thereof under the 10years statute of limitations. After refusing to peremptorily instruct the jury to return a verdict in favor of the appellant, the court, over appellant's objections, submitted the case to the jury on the following issues: First. Has the plaintiff, Mrs. M. J. Brown, had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same for at least a period of ten years prior to the filing of her suit, as against all parties whomsoever? The jury answered this question, "Yes." Second. Is the plaintiff's (Mrs. M. J. Brown's) the five acres in field abandoned by her some dwelling house, crib, garden, chicken house, and two years ago, located on the Andrew Dikes survey or on the M. L. Abbott survey? The jury answered, "On the Abbott." Third. Was the possession, cultivation, and use, if any, of the land covered by plaintiff's facts and circumstances in evidence before you, improvements, if any, sufficient, under all the to constitute notice to the defendant that the plaintiff was claiming 160 acres of land out of the M. L. Abbott survey? The jury answered this question, "Yes." Fourth. If you have answered the foregoing question "No," then you will not answer the following question; but if you answer the foregoing question "Yes," then you will state what 160 acres of land plaintiff's possession, cultivation, and use, if any, under all the facts and circumstances of this case, gave notice of her claim to the defendant. The jury answered this by stating, "That part of the M. L. Abbott's survey including Mrs. Brown's improvements." Before the court's main charge was read to the jury, the appellant duly objected and excepted thereto. The appellant duly requested the court to peremptorily instruct the jury to return a verdict in its favor, and asked other special charges, which charges the court refused. The appellant filed its formal motion to set aside the verdict of the jury and for a new trial. Thereafter, on motion of the plaintiff, the court rendered judgment in her favor for an undivided 160 acres of the Abbott survey, and appointed commissioners to effect a partition thereof. Thereafter the appellant duly filed its amended motion to set aside the verdict and judgment, and for new trial, and to the action of the court in overruling this motion the appellant duly excepted and gave notice of appeal, and thereafter in due time filed its appeal bond superseding the judgment of the trial court. On the trial of this case the appellee endeavored to show that her improvements were on the M. L. Abbott survey, and that her possession had been of such nature that |