In reference to the eighth assignment, we withdraw the statement in the opinion that the fact referred to in that assignment was in evidence and uncontradicted. The statement was not *Page 377 necessary, for we are of the opinion that it was not error for the court to state in its charge upon whom was the burden of proof. The case cited by counsel, Railway v. Geiger, 79 Tex. 21 [79 Tex. 21], does not so hold.
The court charged the jury to find for plaintiff unless they believed that the wife's intention to return was known to Dunn, or he had constructive notice thereof when he purchased. We understand appellant as contending that there was no evidence upon which to base constructive notice; hence, the charge was erroneous in mentioning it. The error, if any, was favorable to appellants.
The other matters are, we think, sufficiently treated in the opinion.
Motion overruled.
Writ of error refused.