The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-06-08

yendee knew of the defects Of the title or
au'enuen 10 take any risks o. the title
When he bought, the court aid moi
err IN charging the Jury that the word
deed as used meant a valid conveyance
OF the land from vendor TO yendee. While
the contract is executory, its interest nature
| recognizes the right Of the purchaser 10 in
SYST nnon title clear Of defects and eI-
utrinces and'his ght does not dope d
upon ice terms OF the contract, but is given
oy the law itself. Fraud upon the part OF
the vendor Will entitle the yendee to re-
elSlOn IN any state of case but the rights of
the parties should be adjudicated with re-
ference TO improvements made in good
Ialth, as well MS parts. Reversed and re-
manded.
Haskey VS.. Smith ct al, from johnson
county opinion by Walker, p J., adopted.
Plaintiffs motion for new trial not being
nleo until after the expiration of two days
from the date OF the judgment, the
court Will not consider whether or
not, the verdict was correct upon the evil
uence. The court charged the jury thus:
Your duty is to ascertain from the evil
uence what land was intended to be To-
Gated, or covered by the surveyor who To-
Gated the John Shelton survey, aud what
land was inte lded to be granted by the
state In the John Shelton patent" Held
error; The counter proposition presented
wss the law OF the case, which is, at is not
whose land was intended to be located or
covered by the surveyor who located the
John Shelton survey, and what land was
intended to be granted by the state in John
Shelton's patent, but what land was,
In fact, located or covered by the surveyor
who located the John Shelton survey, and
what land was, in fact, granted bv the state
In John Shelton's patent" The charge was
an incorrect one, and in its application to
the evidence was calculated to misead the
Jury to wrong verdict. Reversed and re-
manded.
The case of Oliver VS.. Oliver, a consent
case for the commission OF appeals, was
enormously reported affirmed, it should
have been reversed and remanded as the
synopsis indicated. Referred.
Gulf, Colorado Il Santa Fe railway VS.. j.
1, Levy from - Co. Opinion by Stay
ton, ]. Suit for failure to deliver atelegram
ON time. Said telegram announced the
death of appellee's wife and babe and So
iclted the presence of appellee's father and
his dead wife's mother. The facts neces-
sary TO understand the opinion are briefly
stated, these: Appellee lived in Cleburne,
where his wife and child died. both on the
same day. He telegraphed his father,
whose place of business and residence was
at Cameron, on Sunday morning at 10
O'Clock. The train passed Cameron going to
Cleburne at 2oclock that day, which would
have reached Cleburne that night. When
the telegram reached Cameron the messen-
ger went with it to the place of business of
appellee's father, but it being Sunday he
was not there, but he was at his residence
Inrtpy tha Iay Tho al I'M, uao
not delivered until Monday morning, in
consequence OF which delay, appellee was
forced to bury his wife and babe alone,
among strangers, and being pecuniarily
embarrassed and pressed by his creditors
was forced to sell what little property he
possessed to buy a funeral casket, etc.
Held, the petition and evidence show
case In which the acts which appellant con-
tracted to perform were necessary to secure
decent burial for appelees wife and the
presence at the funeral of the pa
rents. And although the message
was sent on Sunday, the court
ought to have instructed the jury that the
contract to do things necessary to that end,
was contract to do a work of necessity
and charity and therefore valid Doyle VS..
Lymac, 1lS Mass. 1891. Having no form OF
action in this state plaintiff may state all
the facts upon which he relies for a recov-
cry, if they be so connected, that out of
the same transaction an injury results; the
extent of the injury and the right to ill.,
creased damages being affected by all the
attendant facts. The tendency OF our de-
cisions is to apply the same rnle for tie
measure of damages in cases based upon
contracts which are attended with cirCum-
stances of aggravation as is applied in
actions grounded on tort solely. The rrin-
ciple applicable to this class OF cases is well
stated by Mr.. Cooley in his work on Torts,
page 81. Held further, upon the whole the
case, as made by the petition and evidence,
appellee was entitled to recover whatever
damage the proof may justify, over and
above such sum paid for the transmission of
the message, and this in the way of exem-
plary damages II the negligence of defend
ant in failing to deliver the message was
willful or gross, which is matter to be deter
mined by jury under proper instructions.
Held further in case of delay or total fail
ure of delivery of messages re,ating to mat.
tiers not connected with business, such as
personal or domestic matters, the compa-
ny ought not to escape without mere Grim.
inal damages on account OF the want OF
strict commercial value in such messages.
Delay in announcing the death, or arrival.
the straying or recovery OF child and the
like, may often produce an injury to the
feelings which cannot easily be estimated
in money, but for whicha jury should be at
liberty to award fair damages, yet in such
case the damage ought not to be enhanced
by evidence which could not reasonably
have been anticipated as probable from the
language Of the written message.
The evidence admitted as to the
financial condition of appellee was
improper, for his condition was
not rendered so by any reason of appellees.
failure or delay in delivering the message.
The evidence was of character calculated
to arouse the sympathies of the jury in his
favor against appellant and besides, to
furnish the jury an improper basis Tor dam
ages. Reversed and remanded.
Gulf, Colorado & Santa Fe Railroad VS.,
Jesse Coy from Milan county, Opinion
by Justice Stayton. This suit is by the
fpther of the appellee in the above case,
who brings suit for i0jury to his feelings,
etc., by not being present at the funeral.
Held. The contract made by the son with
appellant being for the benefit OF himself,
that contract cannot be considered
the basis of this action. To sls-
tain this action 1t must appear that
appellee has been injured in his person,
property or reputation by the negligence OF
appellant. Held, further: No actual
damage being shown to maintain the &C.
ton, evidence which in favor Of plaintiiiin
this case could only bear upon the question
of exemplary damages and averment of a
like kind, can be Of no avail, for unless
some actual damage has been sustained by
plaintiff he is not entitled to exemplary
damages.
The opinion in s. Relic vs. W. U.
Telegraph go Tex, 3l0,) seems to maintain
the proposition necessary to sustain this
action, but ii cannot be sustained on prin-
ciple nor upon authority OF adjudicated
cases. Reversed and remanded.
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