Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-03-15
THE HIGH COURTS.
Syllabus of Opinions Rendered ~ Tue
Galveston Term, 1851.
Reported Specially for The Gazette
..., 80. anpt.ATS

colnty.-Being sued in Justice court OF
an account for goods ana moneys hu
ynnced the appeilee defendant below
filed n counter account for damage
for difference ia price OF certain cottof
r sold by appellant in violation OF con
tra.t. Apncai To the county court iOl
lowed a Judgment for appellee, wher
appellee verified his claim under the
rule prescribed by the statute. on
, lection 10 the verified account rs erl
: dence was urged upon the grounds
that IL was not sworn 10 until j.
reached the county court on appeal;
Held, that the objection was not wei
taken. II was also objected To the ac'
count that ii was not dated, whereupon
the court permitted the appellee TO ap'
pend the proper date To the account
Held, correct, inasmuch az no surprise
was the result OF such action and none
was urged While II is true that,
under tue statute, the item OF damages
as n result of breach of contract was
not properly admissible in evidence a7
SWORN account, the objection comes
too late when urged in this court FOR
the first time. TO state the case: w,
appellants agent, contueted FOR his
principal, to advance SIS per bale on
. |
appellee, the cotton 10 be held until
ordered sold by appellee. In violation
of that contract as shown by the evil
dence. apuellan. sold the cotton for
less than similar cotton brought that
season, without order from appellee
and without notice TO him, Held,
contra 30 positions ofappeliaut, 1.-W.
being appellants general agent to
solicit consignment for his principal,
was authorized to make the contract.
. That the evidence shows the con-
tract to have been entered into.
! 3.-That appellee could not be bound
| by custom of cotton factors ut q.
| The rules are: Where the contract
provides that sales Of consigned goods
shall not be made until ordered by
| consignor, and the consignee sells, he
| is liable for loss. When the con-
| signee has made advances on consign-
ments he has no right to sell before
notice to cOnsien0r aud demand for re-
endorsement Affirmed Hurt, j.
Wheeler X Dabuey ct al. vs.. Rob
erts, from Waller county. The APP
pellee, for use of the G. National bank.
to whom he had assigned IL,
sued appellant upon prom
isory note, for SG5G executed by
Wheeler q nahney and w. II. Wheel
er, and made payable to appellee. The
defendants appeared and answered,
but before judgment withdrew their
answer. Judgment by default was rem
dered against the appellants, and the
case is brought up on writ Of error, the
first assignment attacking the judy
mcnt because copy of citation was not
served on defend unts bat held, that
having answered, they must he held
to have waived defective service. The
note wac payable to 5 r., who assign
ed 1t to the bank by Endorsement thus;
samuel Roberts, and then sued upon !
the same for the Use of the bank. No |
allegation IN the petition shows rs. r." /
and samuel II to he the same per- /
son. QaUrC, whether the note and .
Enforcement show transfer TO the |
bank? But If the petition shows the
bank 10 be the legal owner and holder |
OF the note, aDd that Il. had no inter
est in it, and appellants having an
swersd and Withdrawn answer, can
They now question r. IS right to main
thin the action in the manner sought?
In the case of Anderson VIZ. Shaw, de-
cided ut the last Austin term by Mr.. |
Commissioners Watts, whose opinion |
was adopted, the rule was laid down |
that the payee of the note will not be
permitted tn sue for the USE of the as
sign.es and real owners of the note
when the petition alleges the legal
ownership and POSSESSION of the note
to he in tie parties for whom he sues.
Suit, however, for the party having
the legal title to the note for the use
of the equitable owner can be main
tanned. AS to the effect upon the suit
10y the defendants withdrawal of his
answer, see Greer V. Powell, II Texas,
800 But the Judgment was excessive
1t Is here reformed us To amount, and
otherwise affirmed. Hurt, j.
Mitchell W. the State, from Robert
| son county.-The conviction of the de
| PENDANT in this case was for the bur
| glaIy of the room of one G.. The first
error assigned was TO the action of the
/ court IN overriding the application for
continuance. 10 this action, however,
no bill Of exception was raised, and
hence 1t cannot lie considered by this
| court. The objection TO the charge
! or lne court, so TAR ~
II involved the law OF
the defense of alibi clnnot be objected
TO 81 ce,sfully, because it was far more
favorable TO the defense than the facts
warranted. Affirmed.
! Wallace, Landes Il Co. VS.. liichel.
| berger, from Houston county The
rejected testimony being fully supplied,
IN effect, by other evidence that was
admitted, the action of the court upon
the rejected testimony, whether right
or wrong, becomes immaterial, on APP
peal, since II could not have resulted
IN injury. Upon the measure of dam
ages the courE charged: SIN estimat-
ing damages you will consider the diff
ference between the cash market value
OF the goods seized, ami the price they
brought under forced sale under the
writ OF attachment; also the damages
which The proof may show that the
defendant sustained TO his credit by
reason of the suing ont of said attach
menu also the use of his license. y
Held, correct In the main, (see Drake
on Attach, sec. l7Sl but error in 30 far
as II authorized recovery for damage
10 credit. Only actual damages were
claimed In reconvention, and damage
To credit does not come under such
head, Drake on Attach, see. LIS,
defines actual damages. damage 10
credit can only be considered in esti.
mating exemplary damages. The
chafge was not excepted To nor at
tempted 10 be cured. But article 1918
OF the revived statutes provides thai
J erroneous charges in civil cases must
he regarded as exeeI ted to without
exception being actually reserved
Hence the error is revisable. Reversed
and femanded. Wilson, j.
Ahbone vs. Texas Il Pacific railway
company, from Kaufman county =
on motion for fehearlng The motion