The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-02-17

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facts /. NJ conclusive and will be regarded 10
the ssms way ~ tho verdict OF jury, and
an appellate court will not set aside tho
finding OF Jury unless II clearly appears W
be wrong. 20 Tex, 767; 10 Tea. 81; 10 Tex
40 The finding of q jury or o court trying
the facts will not DO set aside when the evil
dence ia conflicting. Tex. 93; 81 Tex. 900.
The evidence in the case WAS conflicting and
therefore the Judgment is affirmed. Hurt, j..
Richardson % Go. vs. Thatcher ~ Co.;
appeal from Washington county. Whatever
NAV be the private understanding of part
ners among themselves, and whatever limits
they may put upon their dealing it must DO
shown that the creditor kne OF such, other.
wise they are all liable for the purchases or
any commodity in their line Of business 6y
| any one Of the partners though done With
ont the partnerships knowledge or consent.
| Where the subject msttor ofthe contract il
consistent with the partnership business or
incident in any manner 10 It, the sct ot on3
| partner is binding upon all. Reversed ana
| Rsmanded. White, 2. j.
Ell. & r. @. railway company vs.. j. A.
Loveit; appeal from Grayson county Ap,,
pelsnt's train and appelees wagon coliided
At point on the railroad where the public
| road crosses tbo same. There was no sign
| as required by law and appellee also al
leg.s the failure ofsppelant to ring the bell
a. the law requires, Appellant allege' con-
tribusory negligencs in failing to exercise
ordinary care on the part of apostles 10 not
acertaiaing whether or not the
plaintiffs train wss approaching.
The court in effect charge the
iury that appellant would be liable unless
the sppellge knew Of the near approach OF
the train at the time be drove upon thetrack.
Held. The court should have added, that
if appellee could have known of the near
spprosch Of The train by the use Of ordinary
| care tho appellant would not be liable. The
rule appear. to be well settled that notwth-
standing the failure of the ralrosd company
to comply with the statute in putting up the
signs and ringing the boil or blowing the
whistle, that nevertheless il the appellee WAS
wanting in ordinary care in not ascertsinlng
! the fact that the train was thea approaching
and thatthe want of ordinary care on els
part in this particular contributed to toe
cpllsion and consequent injuries resulting
therefrom, he would be guilty OF contriou~
tory negligence and could not recover for the
injury. 81 Tex. 202. Reversed and remanded.
Hurt j
Johs G.. Esndmeyer VS.. James Young;
appeal from Lee county. In the record in
thi, case, there is an instrument COZ aiming
wbs5 purport, to be . statement OF iaets
which was not certified to nor signed by
the Judge until after the adjournment
of the term of court at With the
Judgment was rendered. The Judge appends
% 4 reason that it was made cut and signed
BY the attorneys in due Tins and corrected
by him. but through inadvertsnce he omitted
to sign it. Held, However the error may
have bean committed, it is fatal. Il cannot
bs regarded asa statement of facts, and ss the
question presented is mainly upon tne rul-
ings of the court on the evidence the judy
ment is affirmed. Affirmed. White, P. j.
Frederick Meir vs. the state of Texas;
appeal fron Austin county. Appellant
raises point ~ TO the sufficieucy of the
information which charges ~ follows, towi:
x Did then and there make an as
sauls and battery upon one Albert Solomsn
by thea and there striking him = r.
with a alung shot and inhictng seriou bodily
injuries uDsn him." The ap-
pellant seeks shelter under the expression in
the code which declares that one cannot be
prosecuted on an indictment unlessit charges
The assault and battery in express terms.
Hsld, That bya fsir and proper intsrPrs-
tstiop Of the law, it will DO found from the
sdiudcated case, that ssid phrase or express
sion 10 the code does not mean that the in
dictment or information must contain the
words, aggravated assault and battery" but
IL tia intended TO prosecute tor an aggra'
vkted snsut end bsttery, the circumstances
of asgrAvstion distinctly set cut arr sufic-
lent for sll purposes and intent OF the code
Affirmed. wiHklcr, Judge.
j. r. FLOYD VS.. III. r. Brauper; error frona
Ctt CT IL
promisory note which on its fncs was not due
At the time of the institution Of the suit. The
pl.intin over objection of the defendant
Introduced pnro evidence tending fully to
establish verbal agreement that upon the
happening of q certain event tbe nota wss 70
become due. The ''ceriain event" hnd hap
pened ere the Institution of the suit. On this
the court say: "The general rule IL elimen
tary that parol contemporsneous evidence is
insdmssabls to contradic. or vary tho
terms Of valid written instrument" 2
Phil. Ev $50; 2 .Starkie, Ev 61f; Green;
Ev. 3 275. The court therefore erred in not
sustaining defendants exceptions g. plain
tG'5 Position -ochins % charge the defendant
with parol contemporaueous agreement
whereby the note became due at ano utr aud
different time than thst which appeared
afiirmatively on its face, Reversed and
rsnlanded. Winkler, J.
Wheeler 81 Wilson manufacturing com
pany vs.. X. NJ. Collins ct ais; appeal from
Wise county. Appellants recovered Judgment
in H.rris county against one Cobb. EEccu-
tion levied in Wise county. Appel ~ gave
claimants bond. The justice Of tie pea-e Of
Harris county forfeited the bond aud give
judgment sgainst sppellees. Execution
levied IN last judgment In Wise county,
when application was made for sno ! juno
lion granted by county court Of Wise county,
restraining sale. etc. Question, Had the
county court Of Wise county jufi iictoui
Held. the revised statutes (art. 2SS0) requires
the writ when granted 70 stay An execution
10 be rclurnable to the court where iudg-
ment was rendered judgment hsying been
rendered 10 justice court Of Harris county,
the county court Of Wise county had no
jurisdiction. Reversed and remtnded Hnri.J.
Falipe Gretta vs.. the state OF TeNt-; Ap.
peal from Bee county. Defendant VA q trged
with an aggravated ssssult end battery IN
his wife, Il appears that defendant shout
twenty days before the assault had been in
formed Of an intimacy amounting 4 iriideii-
", on n Q part OF bis wife, with IN unknown
man whom defendant found just before The
assault ct The house wbere his vile va, with
hi. fdofandarfisl baby In bis 1.-THE i.rknOWn