The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-06-23

| Waltz, j.
Houston 81 Toxss Central railroad va Hogg
from Navarro county. When the propert,
Is intended for sale, and the carrier unreas.
onably delays the fame, the measure o
damage Is the market value OF the property
when II should have arrived, and the market
value when 1t was delivered. And to tht
full extent of this difference the carrier is
liable for delay in the transportion of the
property. But If for special reasons. as fol
instance a question of time, in which to de-
| liver undera contract of sale, the shipper
desires transportation fastened, and the car
| rier after being Informed Of such facts, &C.
cepts the property for transportation, a.
delays the same SO as that the shipper could
not realize his special purpose, the rule as
stated would not be the measure of damages,
but rather the carrier would be liable for
whatever the carrier had lost by reason of
failure to deliver in time, and this is general
y the difference between the contract price,
and the market value at time of delivery
In this case special damages were sought
because, by negligent delay of the company,
the plaintiff was unable 10 deliver the prop
erty under contracts previously made, ana
thereby suffered almost to al loss. Over
objection evidence was admitted to prove the
facts ON which special damages were claimed.
No evidence having been offered to
show notice to defendants of the facts;
Held, error, and held, that the court erred ia
so charging the jury on the rule of damages
as to authorize them to act upon the special
facts IN estimating damages. If the prop
erty is shown to have been transported to,
and arrived at the point of destination in the
usual and ordinary time, and was held from
the 10Th to the 9th of the month without
notice TO plaintiff or effort to give notice,
then the property was held by defendant,
and it was responsible for it as common
carrier and liable as such. Reversed and
remsnded. Watts, j.
Wood vs. Thomss; from Comanche coun-
ty. To entitle plaintiff to lien upon de.
PENDANTS property the law requires that
when the contract, order or agreement is
verbal one, in the present case, that he
should, among other things exacted, 10 order
to fix and secure the lien, serve upon the
party owing the debt u duplicate copy of the
bill of particulars contemplated by section l
of the act of Nov II. 1878, regulationg
mechanics liens. Plaintiffs right to lien
on Defendants property did not exist under
any contract, which by its terms or by force
of any implication raised hy the law
created it; but depended solely upon the
statute, and could be created only by com
pliance with its terms. The issue here invols
we'd the existence of the lien, and proof by
plaintiff of every material fact necessary 10
constitute it was absolu ely requisite TO MAIN
tala his right thereto. In this case there WAS
no evidence adduced by the plaintiff which
tended to show compliance by him with
any single requirement which the statute
prescribes to give him lien. Reversed and
remanded. Walker, P. j.
Bowles vs.. Glasgow; from Hill county.
Under a motion filed in accordance with
Arts. 1860 and 1870 Pasc. Dig, the only
issues could be, did such Judgment exist? is
the same lost or destroyed? is that pre-.
sented. copy in substance of the original ?
When the court has been satisfied of these
facts by competent evidence an order grant
ing the substitution must necessarily follow.
No issue Of payment or fraud in procuring
the original judgment or other extraneous
matter can be litigated. in such proceeding.
Ia this case substitution WAS allowed over
the objection that the original judgment had
been paid. Appellant sued out an execution
% the substituted judgment and appellee
sued out temporary Injunction to restrain
levy and sale. Appellant answered that the
matter of payment had been adjudicated
in the proceedings to substitute, and was
therefore res adjudicata. II appellant had
followed up the plea OF. res adludicata
by introducing upon the trial as evidence
the record in the proceedings to substitute
and it had shown such plea by appellee. 1t
adjudication upon the issue of fact of pay
ment as would conclude upon that issue. A
charge to the jury in effect that a witness
might be discredited, if shown that he had
sworn ia sely in the case, or made under oath
contradictory statements upon material
points, as we'll as by introducing witnesses
who Swear that his reputation for trnth and
veracity is bad, and if it appeared from all
circumstances proved that witness bad
sworn falsely on one or more material points.
or had contradicted himself, they should
consider the same in determining the weight
of bis evidence, that the legal effect of such
Use swearing WAS TO impair witness credl-
bility, but they (the jury must determine
the weight, IS held not obnoxious as charge
on weight of evidence. Testimony that the
witness heard B. tell G.thst he would accept
confederate money in payment, and give
directions for ils payment, etc., was properly
admitted. Cumulative, as new evidence will
not warrant new trial. The court has dis
cretionary power to limit examination and
cross exsminstion as TO collateral facts, as
we'll as to shape the order in which evidence
is TO be produced. Affirmed. Watts, j.
Eberling va Schneider; from Guadalupe
county. The issue Involved the question of
or division line between two pat
ented surveys. The court sitting as jury
on a conflict, in favor Of the
of the witnesses of the appellees,
and his finding is entitled TO the same con-
sderation and weight as would have been the
a adlng of jury on the same subject. The
land recovered was sufficiently described in
The Judgment, and 1t is sffirned. Watts, j.
O'Neal ct al vs. Lockhsft ct al; from Co
manche county. Petition that discloses
suit Y five different parties to recover five
separate and distinct tracts Of land claimed
respectively ss their preenption surveys,
against defendant who is alleged 70 have
covered the said surveys with 9TH
err land By certificate which be
had patented, afirmsttvely shows that there
vas no privity Of right or claim between the
several d ainifs with reference TO the sub
iect matter Of the litigation. The defendants
demurrer 10 the petition was Uverruled by
the court. He'd. error, and held that the
court erred IN refusing 70 chprRe as asked, |
that If appellees hso settled on tie land ss
preempiors, and permitted more than one
wear 10 elspse without complying with the
Ia 90 In HAVING same suryeved and field notes /