The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-11-07
THE HIGHER COURTS.
COURT OF APPEALS.

TAlNGklOU, I1OuNlOu II F0ai @hhithtt
railway v. Ware ct al; from Kinney /,
county. Opinion by Wilson, j. 1t has
never been the practice to join two or /
more suits in the same certiorari pro- /
ceeding, and it was not intended That |
such should be done. Certiorari is but /
another mode of appeal. The appellee
obtained several Judgments against APP !
pellant, five being for less than $50 and
three Others for something over so, ana
appellant embodied all of them in one
writ of certiorari, the writ was properly
dismiss d. Affirmed.
Northngton VS.. Turey; from Taylor
county. Opinion by Wilson, j. While
parol evidence is not admissible TO con-
tradiCt, quality, extend, or vary written
instruments, and the grantor in deed
aud his priyies are estopped by the re-
citals therein, these rules are not APP
plicable to the consideration in deed,
or other writton instrument. The only
effect of the consideration clause III a
deed is to estop the grantor from alleg-
ing that it was execution without con-
sideration, and to prevent resulting
trust in the grantor FOR every other
purpose it may be varied or explained
by parOl proof The right TO explain is
confined TO cases where the considera-
tiOn is recited Ii applies to all cases OF
consideration whether reCited or not.
Reversed and remanded.
Fire Insurance Association of London
vs.. Miller Bros; from Bell county.
Opinion by White p, j. When the IN
stitution alleges that the payment OF
the premium on the insurance policy
was waived by the agent of the com
pany, and AYERS the circumstances uu-
der which il was made; fully states the
date when the contract took effect, but
does not state the amount of premium
paid in dollars, alleging, however. that
D, "a. nd N4fh Hxn
the rates with the original insured,
and the contract for which was in the
hands OF defendant, has been trans
ferred to plaintiff, and they agreed with
the agents OF defendant that thereafter
they would pay the premium, that tne
tho policy should DO carried for and
in their own names. Held: Good on de-
murrer. An open policy is one in which
the sum to be paid as indemnity in case
of loss is lett open, to be proved by the
claimant in case of loss, or TO be deter
mined 10y the parties. Although the pol
icy contains stipulation that the same
shall not be assignable unless by writ
ing endorsed on the back of the policy.
etc, yet if the agent of the company
knew of no assignment uOi
in accordance with the stipulation ana
assentcd to it., the transfer Will be held
valid. Where the Judge trying the case
withOu ut jury, finds his conclusions of
law and fact, and places them in writing
rs a part, and they conflict with the
statement of facts signed by cOunse
and approved toy the judge, the state
ment of facts VIII prevail. Where the
policy contains stipulation as Il cOndi
ton precedent TO the insured's right
of action for damages for the loss, that u
statement of the loss be furnished the
insurer, and there is no proof that such
statement was made, plaintiff cannot
recover. Reversed aud remandrd.
Missouri Pacific Railway VS.. Scott;
from Bell county. Opinion by White,
p. ]. Whom contract Of shipment con-
tanned an express stipulation that AS 70
condition precedent to the shippers
right to recover Tor any damage tina
such shipper twill give notice in wrI-
ting Of his claim to some officer OF the
road or its nearest station agent" ETC.,
(Which stipulation has frequently been
held valid) a verbal notice Of his claim
Tor damages is not in cOmplia' GO with
the stipulation. Nor does the fact that
after his verbal notice to tho parties
'hold him to wait reasonable time, and
informed that q member of the
cnmpaut would come and settle with
hlBl," amounts to waver on the part
OF the company To such written notice.
Quarre II given to proper parties. A
conductor Off train, or a superi ten
don't of stock yards, arc merely ON
ployes and not officers Of the road.
Waiver of notice may he established by
proof of circumstances iuCOns stent
with the right OF the antecedent party
TO insist upon the observance of the con-
ditionS of this contract, as well rs by eN-
press promise of such party. Reversed
and remanded.
Steele vs.. Steele ct al; from Falls
county. Opinion by Wilson, /. Where
A purchased tract of land at sheriff :
sale and agrees with the owners thereof
TO cancel his deed il they would allow
nm the uso of portion of the tract, to-
Sether with certain houses thereon free
from rents for a certain period, and al
the end of that period the premises were
demanded of him, and he requested
time to gather his crop which time was
Sanled, he cannot FOR the first time
at the expiration OF this extended
period deny the right of the
owners to the promises because Of am
alleged failure Of their compliance with
inc cont act AS acqulesceuce in the
non compliance with he contract eston.
ped MIN from setting IL up after the cX-
tended time. PTol proof may be made
That the demand I'm writing was made,
hut not ul the contents of The demand
y ct the complaint alleging that The Il
mand IN writing was made, necessarily
charg defendant with possession OF
WV "iIAlug' WOl'u Is equivalent On
notice OF him to produce it on the trial.
Failing to produce it gave the opposite
party the right to prove its contents by
paroL Reversed and rcmanded.
SUPREME COURT
Rlack w. Black, from Titus county.
Opinion by West j, When appellee .
husband had abandoned her and ilod
the county fugitive from Justice,
she had right To sue alone for tho pro-
lection of her homestead When A
purchased land from h and vito and
paid part cash aud the
balance in notes containing ven.
dor's lien on the land, and they endors.
Oh the rules 70 G who transferred Same
TO d IN suit 10 fureclose the vendor :
non and wife arc necessary parties.
I'm suit Of trespass to try the title
brought by ID against A and wife.
where plaintiff offered Judgment
obtained rs above without making A
ana wife. parties, the same was pro perly
excluded. Affirmed.
rHtfssTE H..