The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-12-08

4 UfllNff tUIlVIlt UUN Nli HVi H'N VWN wv
writings. Objection was urged tos admission
Of certain, writings TO prove the contracts.
| fIold that the doctrine OF variance Will not
| under such circumstances apply, and the
writings, being relevant TO the cause OF aC'
ton were properly admitted. Evidence
| that the defendant on violation OF his CON
tract disposed Of the cotton the subjec :
matter ftho suit, proposed to supply the
| nlaintiil, was properly excluded. Affirmed,
! Watts. commissioner.
I Blake VS.. Miller; from Stevens county.
| Petition in suit upon note made to third
parties, which fails to allege the arrange
inent by the payee, shows no privity OF
contract between the plaintiff and the
payee, and states no cause of action, and,
under such circumstances, the erroneous
reception or rejection of evidence is imma.
terial, and in no wise to the prejudice OF
the plaintiff. But aside from this rule, the
instrument declared on in this case, is
shown by the evidence to have been merged
in u judgment and satisfied. Affirmed,
| Watts, commissioner.
Brown & Co. VS.. Young ct al; from Par
ker county. Whether or not County
Judge who issues an injunction to restrain
| proceedings under an execution from q
Justices Court shall make it returnable to
that court, depends upon whether the JUS
tice would have power to determine the
controversy involved in the injunction, and
whether or not the cause for injunction is
such as to require the writ to be returned to
the court whence the Judgment and execu-
ton issued. Plaintiffs claim in this. case
was that the property levied on in p.
| county upon the execution from G. county,
was his, and not that of defendant in execu-
ton it exceeded $500 in value, and the
process of injunction was properly resorted
to. AS to rights OF, co-peartners to protect
| their interests and their remedies, see
Story on Partnership, section 26l, and note
under facts above stated; section q Tex Az;
20 Tex. 719; Story on Partnership, section
264. Affirmed. Walker, commissioner
Tyler Tap Railroad Company VS.. Lyons;
from Smith county. In suit against
railroad company upon an accepted order
amount had not been collected by the agent
of the plaintiff. The instrument being an
order to plaintiff sagent to collect, accepted
| by the railroad company, was properly ad-
mitted in evidence. Charges asked are
properly refused, if, though correct as far
as they CO. they fail to present the whole
law of the case. How far the agent may
rule in Story on Agency, SIS. Affirmed
| Quinah commissioner.
RYAN ct al. VS.. Wilson ct al; from Tar
rant county. The suit being to enforce
specific performance of verbal agreement
to convey land, and the-record disclosing
that three days after the agreement was
made, and before any improvement had
been made upon the lots or purchase money
rendered, H., the party agreeing to sell;
died. The agreement being naked and
nothing more, was void as being in contra
venton of the statute of frauds. AT his
death at the time, the estate OF IL: vested
in the legatees, unaffected ny the vold
agreement, and subject only to be dvested
for the purpose Of administration. Nor
would the fact that the parties to the agree
ment went upon the lots at the death of II.
affect the rights of legatees, nor they be
affected by the executors admission OF the
allegations in the petition. Reversed and
remanded. Watts, commissioner.
Hays &c Co. VS.. Samuels u Sons; from
Cook county. The petition stating cause
of action, which must have been good on
general demurrer, and there being no eX-
ception taken to it, the court ruled properly
that evidence was admissible to establish 1T.
Possession of acceptances is sufficient to
raise presumption of payment. Variance
as to names of parties in whose favor ac-
ceptances were drawn must be so much
MISREPRESENTATION of parties as to mislead or
surprise the adverse party. Affirmed. Watts,
commissioner.
Sugar VS.. State; from Raines county.
! While it is sought to establish a claim OF
title to personal property by virtue OF bill
delivered with it by defendant on its sale,
the instrument itself was the best evidence
of its contents, and States witness should
not be permitted to state the contents from
memory. Predicate off time, place and cir
cumstances of a statement made by prose-
cutting witness, having been laid as basis
of showing the animus of the witness, and
in the event of denial, to introduce I'M
peaching testimony, the evidence was I'M
properly excluded. 1t is error to refuse
the defendant time to prepare bills ofeN-
30 r,,li,,pc ordarc "a decisions of the
court, to which he excerpts, The state
having introduced the part of a converse
ton, il was error to refuse to allow the de-
PENDANT to prove the whole of it bearing on
the same subject. Penalty for the theft OF
property under $40 in value is neces
sarily imprisonment in the county
Jail in any term not exceeding one year,
and during his term, hard labor may be i'm
posed, and fine may be added not TO exceed
$500. Simple fine is not adequate under
the statute. Reversed and renaanded.
White, presiding justice.
Brumley VS.. State: from johnson county.
In transferring misdemeanor case TO the
County Court for trial, it is required of the
District Clerk to send also a transcript OF
all the proceedings in the Dis
trct Court. The want OF proper GER
tiiicate of the Clerk of the District
court of the transfer and proceedings may, be
properly pleaded in the county court TO de-
feat It's luTlSQltLlDu. pau Nhi hOb
vitiate an indictment, and besides the word
"spiritous" is idem sonans with "spiritu-
GUS" Reversed and remanded. White,
Robertson a Herndon VS.. Weaver; from
Hopkins county. The evidence in this
case showing that If the appel
ants were entitled to recover at
all, they were entitled TO
recover the ifnll amount of $780, less credit
of 500, and the verdict being in their favor
for only slO7. 10, it is decidedly against the
weight Of the evidence. Reversed and re-
handed. White, presiding Justice.
Harris VS.. Credible; from Camp county.
A prerequisite TO the perfection OF an ap.
peal from the Justices TO the County Court
Is notice Of appeal given in. open court at
the trial and unless this notice Of appeal
appears Of record, motion TO dismiss appeal
is Improperly overruled. See Texas CT.
App, 402; Rev. SITS, Art. 1859. Reversed
and remanded. White. presiding justice.
Klsbnisch VS.. staiti; from Harrison coun-
ty. In a suit for the recovery Of an amount
Of an accepted dram given for goods pur-
chased before their receipt by their pur-
chaser, the measure Of damages, on a de
Tense Of failure Of consideration, Is the DIFF
ference between the price paid for the
goods and the value Of the goods In the
market when received. See Easterly d
Sons W. Jones, decided at the present term
and reported in the Dallas HEEALD, No
yember- for general rule, on the question
Of the measure Of damages. Reversed and
remanded Winkler, judge.
Garrett a Key W. City OF Marshall; from
Harrison county. The suit being upon
drafts against the city upon a particular
fund, petition should have arerTed that Il
had funds Of that particular appropriation.
And though the petition alleged that an
elec' On had been held At which the city by
vote n--umed charge Of the public schools
as q separate school district. Il -hOuld have
shown that q subsequent election had
been held 81 which the prop
ouerfv-boidcrs elected 70 impose
Necessary tax 20 sustain such schools. nless
the record discl0ses that the plaintiff de-
sired - amend defective petition he pre-