Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-05-02
Tie GAzETTE: FORT WORTH. TEXAS FRIDAy MAY .

o'nP'"fy uainagcs Is equivalent IN
prayer therefor. Reversed and re-
hanHeu' Willie, Q. J.
AIKEN We. Hale 4 Mcdonald, from
lamar county. The original petition
cia,med damages FOR breach of contract.
ana did not In subsequent pleadipps
relinquish that character of claim ot6-
erwlse than i'll praying in alternatives
Ior SPECIFIC performance until Inv
amendment compensation was claimed
Tor per 0rmance of service nnder CON.
tract The cause of action depended
upon the same facts and the same
transaction throughout, and the differ.
ent variations, occurring In pleadinps
at different times, have had relation
only to question of relief. Held moi To
change the character of the cause
of action. Under our system Of MEAD.
ing the cause of action depends nnnn
the facts stated In the petition .npro.
pirate for recovery rather thar nariic.
ular breach laid, Special excan,inn
was that 1.-THE cause of action attnn,nt.
ed to be set up by plaintifIs shows
upon its face that It comes witl,n fro
statute OF frauds and cannot ba sus.
tained.v The exception was nroner.
ly 0verruled See butcher va STEEL
Works, 6S ILL.,, I2. II is an acce,t. Il
doctrine that cone who has rendered.
services i'm execution of n yerhai can.
tract which, on account of Tho statute
cannot be enforced against The other
party, can recover the ynlne of Tho cor.
vices rendered upon onantnn,
m eruit.u Affirmed on renort ~ WaIs.
err, commissioner
Frazier ct al. vs.. woodward S,u;res
a -. - ~ u 'fse'
STRUNG articles iS47 and laao of ,ba
Revised Statutes. the filing of tbe mo.
tition NJ or before tba ;,9don,a,t ~,
confession il essential And in IN
Texas. 100 il was nronerIv ba,d that
where the suit was unon n ron,issorv
note. which was made nnrt IF the ne,i-
ton, and the amonnt in contro,prs,,
was not stated If WINS sutI,cient Gov ~,
Judgment TO declare the amount due
on the note. n ia n settled doctrine
that facts not alleged though nrnved
can form no basis for a indgnsnt
TGray Va. Osborne u Tax ~ Tha
doctrine of waiver asserted i'm tinss We
Pilgrim. IS Texas - cannot ann,y ~
this ease because il Is annarent tint The
amount adiudred In excess of claim
does not arise nnon miscalculs,ion ~
interest. but that II arose from, ronsid.
Grafton of other Claims than that as.
serte 4 in the petition. A INDICTMENT
cannot include n cause of action NOT
asserted i'm the nathan Uenca ann.
fession of Judgment in this case can.
not work n waiver of error comnIoinad
of. Reversed and remanded on renort
of Watts, commissioner.
Daniels w w U Tel 90 from
Grayson countv Annellant sued FIR
damages for nerlipeptly falling TO de-
liver two message. wherein the dam.
age was laid ut So .. Including
1875 paid IA toll for transmission.
So 900 was claimed os exe,nniarv dam,
aces for gross and willfni nerl.ci in do.
livery. Demurrer wns waived mn
special execution was su tanned and
apnellee ADMITTING fine demand for
81 81 toll iudgmen2 therefor was ren-
dered The Question III issue arises
upon the proper measure of damages
which has haen CORRECTLY stated az fol
bws: "Where two parties have made a
contract which one of them has broken
the damages which the other party
ought to receive in respect to such
breach Of contract should be such as
may be fairly and reasonably
considered either arising natu-
rally, /, e. according to the usual
course of things, from such breach of
contract itself, or such as may reason
ably be supposed to have been in the
contemplation Of both parties Mt the
time they made the contract as TO the
probable result thereofn Where the
import of Geographic message Is
wholly unknown TO the company's
agent, it cannot be assumed that he
had in view any pecuniary loss as TO
the natural or probable result of failure
to send such message; and in such
case, in failure to send. the sender can
recover only nominal damages, or the
amount paid for sending the message
In Hays VIZ. III. G.. n. II. II, Co. the
rule upon claim for exemplary dam
ages in cases of this character, is elab-
orately discussed. The rule cannot be
invoked under the facts of this case.
Affirmed upon report of Walker, COM
missioner.
uousto, e. Tax,s ,antrol Railway VS..
uiaLs from naJlas conntv The action
In iii, case wes hronobt Inv annellees
fnr dama~es for the death Of appellee's
minor son accustomed nv the EXPLOSION
ofa Incomotive belonging to appellants.
A witness was permitted to testify
that after the explosion, the engineer
said TO him that he chad stopped twice
since he left Houston 10 come to Dal-
Ias IN that trIn TO plup The engine to
nravant eynlosion and that he was
I'd clad Il had esnloded, That
ha rot Off the engine ne soon "a IL