The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-03-25

s. Tho burden OF establishing thece ale
cations was upon appellants, and falling 10
do 40 10 the falisfaction OF the Jury, and
there being evidence TO support thtir tnd-
ing, appellees we're entitled TO their iudg-
ment, Affirmed.
Oliver Va. Gownn OF nj, from Navarro
county. Opinion by Deiany, J. Adopted.
Where the record fails 10 show that oblsc.
lion was taken to the intervention OF a
party, the point will not be- noticed. Ii, ~
alleged, defendant aud the intefvenor coll
luded aud the iltervnnor introduced Wit
ness TO give the defendant an opportunity
10 impoach him, II plaintiff know this be-
fore trial IL should have been pleaded; or II
discovered after trial n oontinuaAoe should
have been asked. The bill OF executions
falling 20 contain evidence offered for the
purpose OF Impeachment, the point cannot
be noticed Affirmed.
COURT rF APPEALS.
Hester Va. the State, from Gonzsles
county. Opinion Ivy Wilson, !. Where
evidence which Is hearsav IL admitted ani
such evidence is material and relevant the
error 10 a iatal one to the conviction. But
II such hearsay evidence was not materinl
and relevant and there was sufficient legal
evidence to support the conviction ~ would
not be reversible error. While the courts
charge was ~ q whole correct the evidence
IN too uncertan to support the judgment.
Reversed and remanded.
Galveston, Harrisburg San Antonio
Railway VS.. Hartman, from Gonzales
county. Opinion by White, p. J. A pro
vision in n contract Of shipment OF stock TO
| the effect ns follows: "And for the con-
sideraiion before mentioned, said party Of
the ,ecoDd part AGREE that nv condition
precedent % his right TO recover any dam
ages for any loss or injury TO said stock, he
| will give notice 10 writing oi this claim
therefor 10 some officer OF said party OF the
| fret paft, or ita nearest station agent, be-
| fore said stock 10 removed from its place Of
dsstination," while IN contrnven ton of the
statute. yet as bet tween the shipper and the
railroad Is valid aud binding. wv. * w.
| Con Rep. 37i-l 257; 2 Texas Law Review
1907 AS n charge embodying this proVis
ion of the contract was refused and such
was not given In the charge OF the court,
tine refusal OF such special instruction Was
error Rrversed ard remanded.
Allibone VIZ. Texas & Pacific railway,
from Kaufman county. Opinion by Will
son, l. Tho charge in this case upon neg
ligence and contrlbutory negligence rs sp-
plcnhls to case for damages for des.ruo'
;lon OF cotton by sparks OF fire emitted
from a passing locomotive was correct. "A
party placing cotton in near proximity "a
a railroad track, even though on his own
land, NAV be guilty OF contributury negli
eence. Affirmed.
First National bank OF Las Vegas VS.
Pritchard, from Galveston county. Opin
ion by Wilson, !. Affirmative matter o
defense must be pleaded, or II cannot bt
given in evidence. Facts proven cannot
form the basis OF d judgment unless sui
dceo,ly alleged, and though the evidence
be admitted without objection it must b'
diaregarded by the court.
In suit on 4 note where 10 Is alleged the
same was given as collateral security for tn
payment OF the same, an alleged alteration
10 that effect is immaterial. When the tria
Judge finds the facts Of the case his finding
! are treated as the special verdict OF Jury
and II he fails to find upon any material is
: sue, the affirmative OF which 10 necessary u
} make out the case OF the party in Tho,
! favor he gives judgment, though tser
: may have been evidence upon which h
might have found upon such issue, III
judgment will be unsupported by the hud
= iuea and will be reversed. AS 70 the ouEdel
proof upon the issue OF the alleged altere
= tion OF the mole. the rule is: When an ai
= legged alteration is not apparent on the fac
r of the instrument, the burden ct proving
r. is upon the party alleging It. Reversed an
2 III. K s. A. railway Va. Davis, iron
Gonzales county. Opinion by White y.
I This is a suit Tor demagee to certain cor
y shippoG over sppellsrt's road. AppeIle
loaded the corn into tho cars In vet cor
r dltiou. He claims, however that Oh
n damage was caused through negligence
!. etc, Of the railroad. Held: The court faile
u 10 instruct the la OF the case correctly, y
II the same was embodied in the instructio
refused, in these words: at the jerry bI
lieve from the evidence thst plaintiffs ha
0 control OF the loading OF the car in whic
i This corn was shipped, aud that they load
ed said corn in the car themselves while
was wet and in condition to be damage
by being bulked in the car, then the az
I iendaut would not be responsible 10
!. damages occssioned thereby, and If Ia
g jnry believe from the evidence that tn
: corn became damaged because OF ils havin
I been loaded in the car by plaintiffs Will
? wet and In a condition to ne dam aged there
l by, YOU will find for defendant" Reverse
: and remandpd