Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-07-12
COURT OF APPEALS.
Synopsis Of the Decisions Rendered Of
the Austin Sitting Of the
Court Of Appeals,
Made up From the Full and Official Re-
port of the Rulings and 0pin-
ions Rendered.
Complled for the GAaette.


Grayson county. The defendant
contract being to deliver the goods on
the cars at d and to be consigned to
s., which they did do, they were not
liable for damage from the point Of
delivery at S., as contemplated by the
contract, to some other poiot, nor
for expense of storage. The award
of such damage was fun
iamental error. For rule see Suth-
erland or Dam. 397. The plaintiffs
action was for breach OF warranty, and
1t would not have been the introduc-
ton of new cause of action for plain
tiff to have so amended his claim for
damages as to embrace any item that
could properly be claimed under the
warranty. That the contract was based
upon warranty, Is amply established
by the evidence. Reversed and re-
manded.
The Texas & Pacific Railway vs.
Weakley IL Gooch, from Tarrant coun-
ty. A witness for the plaintiffs Zap.
pellees) being permitted to state his
opinion or conclusion as to the effect
OF the injury to the jack, which he saw,
answered that, in his opinion. the
injury caused lite death. AS a predi.
Gaze, qualifying him as an expert with
respect to jacks, testified that he had
handled jacks for twenty or thirty
years and was well acquainted with
their dispositions and propensitIes. ]"
Held, that the predicate was sufficient
to establish the witness status as an
expert. ] Greenl. on Ev sec. 40 and
notes. Reversed and remanded.
First National Bank. vs.. Beck, from
Collin county. The gist OF plsintif's
| action was the damage IL sustained by
the false and alleged fraudulent rep
resentations of defendant, which
induced 1t to buy the note which
plaintiff alleges was not the property
of defendant, put OF Mrs. Beard,
payee of the note. The note was nego-
| table and payable to the psyee named
| in 1t or TO the bearer of the note. II
plaintiff acquired the note while cur.
rent, before due, for valuable 0nsid-
GRAFTON, aud without notice of defect
Of title, or OF any defense that might
be urged against it. IL would have
acquired 60 I'd title to the note II it was
| obtained in due course OF trade, and
could recover, notwithstanding own
ersbip, the real owner. Sec. /,
Daniels Neg Inst Sec 769 a, and sl2
| The note was due by its terms January
| ], 1888, and, according to the pl, adings,
was transferred to plaintiffs by deliv.
cry for face value, without notice, Jan
usry 3, 1888, which was within the
period of time within the three days OF
grace allowed by law. Held, that the
instrument, under the la giving three
days of grace, Is not due in fact or In
law until the expiration of the last
day OF grace, and plaintiff in this case
acquired the note before maturity
! Affirmed.
Henry va Fay & Co., from Cooke
county. The petition purporting to
set out the nc lie sue1 on in haec verba
instead of It's substance, the note to be
admissible in evidence must CORE.
spond exactly with the note as set out
in the petition. Any variance dis
qualities 1t, Insufficient to rsise ques.
ton Of its identity. The rule laid
down in Martin vs. Brown, - Tex.
345, on the question, is de-
csive of this case. The note
being, in fact, payable anywhere In
Cooke county, Tex, the defendants
plea OF privilege TO be sued in The
county OF his domicile ia not well taken
If q cause be tiled before Judge with
out jury, the admission OF objection,
able evidence will not, ordinarily
afford ground for removal, II the iudg
ment is rightfully rendered upon evi
dence that Is competent. 81 Texas
500; % Texas, PAS Reversed and re
msnded.
Gregg d Drury va. the State. from
Taylor county. No. 3542. /. A bail bond
when taken by authority Of law anC
returned into and placed upon the file
OF the proper court, Is then an oblig9
ton of record. Being such, maleri
al alteration without the consent o
the obligors will iuvalidste it. Blu
alteration to have such effect must b.
material. When cause Is no
tried at the frat term OF the court al
ter service OF citation an erroneous rul
ing In regard TO the sufliciency of tn
citation or service thereof is immateri
al. 8. II was surplusssge land
thei efore, immaterial error II
the judgment nisi to order eta
lions TO issue aud direct when tn
came should be returnable. 90. G.
Art. 44l; } 4. The citations were plead
ings and not evidence, and they wer,
4 lOb W OC lCuu III tNldCbCO
the state. 3. The court not being IL
session the sheriff had the right 4
take the bond. 8. After this bail bone
was amended the defendant filed
plea of non est .fdctUaa. which plea, II
fact, had re ereuce only tn the bond
as amended. 1T was abundantly
proved that defendants executed th,
identical bond which Was amended
Instead OF the plea OF non est JdcttHa
the proper practice would have been /
special plea admitting the execution
Of the bond, but attacking Its validity
because OF the alteration. Affirmed.
Wiuborn Williams We. The State
from Live Oak county. The law i
mat datory that, in felony cases, th'
Judge shall deliver to the jury a writ
ten charge, directly setting forth th'
law Of the case, which written eharg'
shall be certified by the Judge, filet
among the papers and shall constitute
a part OF the record ia the case. Al
uncertitied document purporting TO b.
charge, though filed, will not b
considered by this court. The RECORD
not showing afiirmhtlvely that
written charge was delivered 10 tn,
jury, the judgment is reversed anc