The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-01-12
THE HIGHER COURTS.
SUPREME COURT.

y
effect that any attorney-st-law is au-
thorized to appear for the maker in any
competent court at any time and con-
fess Judgment in favor of the owner or
holder of the note, waving service of
citation and copy of petition, and
agreeing that execution may issue at
enoe on the judgment. The petition al
legged that the note had been lost, and
an alleged copy was filed among the pa
pers of the cause. One l., an attorney
at-law, appeared for the maker the dsy
the petition was filed, and by virtue OF
the alleged power contained in the note.
waived service and copy of petition
confessed Judgment in favor of the
holder Of the note, and agreed that exc
sution on the Judgment might issue at
once. Held: Such attorney was not au-
thorized to appear for the maker and
waive service, etc, in suit to substi-
tute the note. His only power was de-
duly and legally substituted, he was
not authorized to act for the maker in
any particular. Reversed and Re-
manded.
Ruhl VS.. Kaufman Il Runge: from
Galveston county. Opinion by Watts.
j, adopted. In suit by application i'm
The county court by the surviving wife
10 have certain property set apart AZ
her homestead wherein the administra-
ton of her husbands estate filed on
position to her application, and creditors
interviewed and join the administrator
In opposition to the application. the fact
that the administrator did not perfect
hisappeal from an adverse decision in
the county court, to the district court
does not defeat the right of the creditors
toa hearing in that court. Oral evidence
OF declarations OF husband rs to his in
tentlon IN making purchase Of
property claimed as homestead, ia adj
missible upon an issue as to whether
the particular parcel of land constitutes
apart of the homestead or not. Where
the husband and wife had both made a
deed to piece of land on the same
block, as that in controversy, in which
deed they had expressly disclaimed all
homestead interest in other property and
designated their homestead, such
deed is admissible as eyidencs
Of an explicit declaration Of the parties
as to their intention respecting the linn
its OF their homestead at that time. Such
declarations, however, are not an estop-
pei where no one at interest is shown Ia
have acted upon the faith of it. Where
property in fact constitutes a part of the
homestead, the husband and wife can
not at the same time, waive the home
stead right and create lien upon the
property. Such lien is exhibited by the
constitution. Intention Of the owner
respecting the property and the use to
Mhlch IL IS subjected are controlling
facts in determining what lot or lots
constitute the homestead. Affirmed.
The Pacific Express company Va. OAR
nell; from Van Zandt county. Opinion
by Watts, ], adopted. When two par
ties nave made a contract which one of
them has broken, the damages which
inc other party ought to receive there
Tor are such as may fairly and reason
ably be considered AZ arising naturally
from such breach of contract itself or
such as may reasonably be supposed to
nave been in contemplation of the re-
spectlVe parties at the time they made
the contract as to the probable result of
the breach OF it. Every essential fact
must be alleged in order to admit the
necessary evidence in support OF it. In
SUIT against an express company for
failure to promptly transport a piece OF
machinery, where it was not alleged
shat the agent was informed that the
entire mill would be idle until such
piece of machinery was returned, and
OF the reasonable and probable result OF
delay to promptly deliver the same.
proof OF these facts could not be made,
aud profits as damages could not be re.
severed. Reversed and remsnded.
Stringer OF al. vs.. ,Swenson; from
travis county. Opinion by Delanv, l.,
adopted. In suit against the husband
on note and against him and his wife
to forecloso deed OF trust on land given
10 secure the note, where no personal
judgment Is asked against her, the fact
mat the wife did not execute the note,
aud that she was not personally bound
for the deb, is of no consequence. Even
If there was fraud and undue influence
practiced upon tho wife in procuring
the acknowledgment, there being no
evidence that either plaintiff or his
agent knew OF that fact, the point is UNI
available as defense to the suit. III
property be homestead, declaration in
the deed that it was not part OF the
homestead is not binding on the maker.
Affirmed
First National bank of Waxahachie,
VS.. Lancashire Insurance company;
from Ellis county. Opinion by Delany
j. adopted. Suit on an insurance policy
issued ON goods, wares, merchandise,
produce and other property owned or
held in trust, or on commission, or sold
and not delivered by the insured at GER
tain designated places. The property
destroyed was cotton purchased by X,
With funds OF the insured, under an
agreement that when X. sold the cotton
No was TO pay the insured the money,
and If shipped, the bills OF lading were
TO be taken in the name Of the insured
or assigned toit. The cotton was not de-
ftroyed in any place designated by the
policy. Held: A demurrer was correctly
sustained to the petition setting up
these facts as it furnished no good cause
OF action. Aninsurance policy must be
construed according to its terms and
the evident intent of the parties, to be
gathered from the language used. The
court cannot extend the risk beyond
mat fairly within the terms of the pol
ICY. Custom, or the course OF dealing
between the parties, like other extrane-
Gus circumstances, may sometimes be
looked to in order to interpret what is
doubtful, but not to contradict that
which is plain. Although custom or
usage may be inconsistent with the
printed conditions of the policy, it may
nevertheless be shown, not To contra
act or vary the contract, but to show
that such conditions were waived. The
agent of an insurance company, keep
Wishih WIZ vi uutuOIliNt
may, by his acts and sometimes by his
failure to act when he should do so, dis
pense with conditions or waive forfeit
ures and thus bind the company, but
such cannot be done in cases like this,
where the power OF the agent Is defined
and limited by the policy of which the
insured must take notice. Affirmed.
COURT OF APPEALS.
Brown VS.. the State, from Dewitt
county; motion to dismiss the appeal
because of the iusulliciency of the recog.
nizance. Appellant was convicted of
unlawfully having and carrying on his
person certain pistol at a sociai gath.
ering where persons wore assembled for
amusement. Held. The recognizance
Is sufficient because IL does not follow
the Information and does not show that
the defendant had or carried pistol on
or about his person, and did not, there
ola Il. 4 A.. a l.