The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-06-18


the exceptions. Reversed and Iemsnded.
Watts, j.
Huston & Texas Central railroad VS. Hcgg;
from Navarro county. When the property
IS intended for sale, and the carrier unreas-
onably delays the same, the measure OF
damage is the market value of the property
when it should have arrived, and tue market
value when il was delivered. And to the
full extent Of this difference the carrier is
liable for delay in the transportien of the
property. But if for special reasons. as for
instance question of time, in which to de-
liver under contract of sale, the shipper
desires transportation hsstened, and the car
rier after being informed Of such facts, &C.
cepts the property for transportation, a d
not realize his spscisl purpose, the rule as
stated would not DO the measure of damages,
bu, 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.
ln this case special damages were sought
because, by negligent delay of tho company,
the plaintiff WAS unable to 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 tina court erred in
go charging the jury on the Iule of damages
rs to authorize them to act upon the special
facts in estimating damages. If the prop
erty is shown TO have been transported TO,
and 'rrived al 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 tho property WAS held by defendant,
and it was responsible for it as a common
carrier and liable as such. Reversed and
reminded. Watts, j.
Wood VS. Thomss; from Comsnche coun.
ty. To entitle plaintiff to lien upon de-
PENDANTS property the law requires that
when the contract, order or agreement is
verbal one, ms in the present case, that he
should, among other things exacted, in order
to fix and secure the hen, serve upon the
party owing the debta duplicate copy of the
bill of particulars contemplated by section |
of the act of Nov II, 1878, regulationg
mechanics liens Plaintiffs right 10 a lien
on defen isnt's property did not exist under
any CONTRACT which by its terms or by force
Of sny implication raised by the law
created it; but depended solely upon the
statute, and could be created only by com
pliance with its terms. The issue here invol-
we'd the existence of the lien, and proof by
plaintiff OF every material fact necessary TO
constitute it was absou ely requisite to MAIN
tala his right thereto. In this case there was
no evidence adduced by the plaintiff which
tended to show a compliance by him with
any single requirement which the statute
prescribes to give him lien. Reversed and
remsnded. Walker, Z. j.
Bowles vs.. Glasgow; from Hill county.
Under u motion fled in accordance with
Arts. 1860 and 1910 Pasc. Dig, the only
issues could be, did such judgment exist? is
the same lost or destroyed? is that pre-
sented u 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 lltigated.. in such proceeding.
la this case substitution was allowed over
the objection that the original judgment had
been paid. Appellant sued out an execution
on the substituted judgment and appellee
sued out a temporary injunction to restrain
levy and sale. Appellant answered that the
matter of payment had been adjudica,ed
in the proceedings to substitute. and was
therefore res adjudicata. II appellant had
followed up tho plea of res adiudicats
by introducing upon the trial as evidence
the record in the proceedings to substitute
and it had shown such plea by appellee, it
could not then DO held to constitute such Oh
adjudication upon the issue of fact of pays
ment as would conclude upon that issue. a
charge to the Jury ia effect that witness
might be discreditsd, if shown that he had
sworn falsely in the case, or made under oath
| contradictory statements upon materi Al
points, as we'll AS by introducing witnesses
who swear that his reputation for truth and
veracity is bad, and If it appeared from all
circumstances proved that n witness had
sworn falsely on one or more material points.
or had contradcted himself, they should
consider the same in determining the weight
of his evidence, that the legal effect of such
false swearing was TO impair witness credi-
bilily, 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.that no would accept
confederate money in payment, and give
directions for its payment, ETC., was properly
admitted. Cumulative, rs new evidence will
not warrant new trial. The court has dis
ctetionary power 10 limit examination and
cross examination as to collateral facts, ms
well ss to shape tho order in which evidence
is to DO produced. Affirmed. Watts, j.
Eberling vs Schneider; from Guadalupe
county. The issue Involved the question of
boundary or division line between two pst-
ented surveys. The court sitting as q Jury
determined. on conflict, in favor of the
credibili,y of tho witnesses of the appellees,
and his finding is entitled to tho same con-
sderalion and weight rs would have been the
illding of a jury on tho same subject. The
land recovered was sufficiently described in
the judgment, aud it is affirmed. Watts, j.
UNeal ct al VS. Lockhsrt ct al; from Co.
msnche county. Petition that discloses a
suit ~ five different parties to recover five
separate and distinct tracts Of land claimed
respectively Ms their preemplion surveys,
against defendant who is alleged to have
covered the said surveys with 9th.
or land by certificate which he
had patented, Automatically shows that there
was no prlvity of right or claim between the
several Plaintiffs with reference to tho sub
ject matter of the litigation. The defendants
demurrer to tho petition WAS uverruled by
tho court. He'd, error, and held that tho
court erred in refusing to charge rs s,ked,
that II appellees hau settled on tho land as
preemptors, and permitted moro than one
year to elapse without complying with the
law Ia having same surveyed and fiAld notes