Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-11-28
THE HIGHER COURTS.
synopsis of Decisions Rendered nj the
tyler sitting OF the Court OF Appeals.


synopsis Of Decisions Rendered nj the
tyler sitting OF the Court of Appeals.
j. w. higgins VS. A. Hinchman appeal
from McLonnOn. Suit for n breach OF the
following contract. "Thls agreement
made and entered into this the 10Th day
Of August, A. d. 1879, by aud between A.
Hinchmnn of the first part and N. b. and
j. w. Higgins Of the second part, all Of
The city OF Waco, witnesseth That for
and in consideration OF the party of the
first part purchasing from the parties Of
the second part seven % Tennessee wag-
ons, all complete, except sheet, delivered
at Hmchnan's store, for $30B cash, the
receipt Of which Is hereby acknowledged,
and Sl0G due and payable siXt, days from
This date. Now in consideration Of above
parties Of the second part bind themselves
not to sell directly or Indirectly in the
city of Waco any wagons for a term OF two
% years commencing from above date
IL Is understood and agreed by both par
tles to this agreement that they Will
mutually use their influence in furthering
the sale OF any goods in their respective
lines during the continuance of the term
OF two years from this date and pledge
themselves to carry out the terms of this
contract to the best Of their ability. The
party of the second part bind themselves
TO pay the party of the first part the sum
OF $500 forfeit for any failure on their
part to comply with the terms of this
contract. (Slgned)
A. HINCnMN,
J. w. HIGGINS.
IL appeared from the evidence that Mt
the time of making this contract both
parties were engaged in selling wagons,
and that the plaintiff, lIinchman, CON
tlnucd IN that business up to the institu-
ton OF this suit. That on day within
the two years Higgins sold wagon of
the kind described in the city
OF Waco. Held, that on proof
OF single sale the plaintiff
was entitled to recover the sum fixed, il.
being liquidated damages, Penley VS..
Record, GO Me- IA; Parsons Contracts,
100, Affirmed. Opluion by Hurt, j.
j. l. Windham VS., the State, appeal
from Brown. When defendants right to
the animal alleged to have been stolen
was first questioned, one Lee Wlndham
was present, and on the trial he stated
that defendant then called upon him 10
state what kind OF an animal IL was de-
iendant aud witness had killed and wit
ness described IL and stated to the parties
mat II WAS Wiudham's, and not the one
they were inqulring about. Held, that
thls evidence was in fact the
explanation OF his possession by the
defendant and entitled him TO charge
That II the same was reasonable IL de-
VOWED upon the state 60 prove it false.
and the failure TO give such charge, when
requested, was reversible error Re.
yersed and remanded, Opinion by wa
son, j.
Harwell, alias Newsom, w. the state.
appeal nom Burnet. II aGlrmahyely an.
pears that no evidence was introduced
upon the trial, the defendent having
pleaded guilty 10 the Indictment for theft
OF a horse. Held, that the provisions OF
arts ole'9Bt, e. {, T. are mandatory, and
u Is fundamental error to disregard
u where the plea OF guilty is entered
lot the defendant, and the punishment
y NOT absolutely fixed by law, leay-
lng no discretion 70 the jury, evidence
must % introduced upon the plea, and the
Judgment entry should show that this was
dome, Reversed and reminded. Opinion
oy Wilson, j, (rhis opinion is IN con.
t'lot Win decision by the court at
former day Of this term.
Texas \ Pacific Railway Company Va.
Pierce Welsh, appeal from Kaufman. The
action being for damages for personal in.
lurlos caused by the negligence OF the
railroad company In running its train, the
court did not err In giving the following
charge "rhe jury are further charged. II
they believe from all the evidence. that
piaintlh was run over aud Injured by dc.
icnaaht locomotive IN the town OF Ter
rel, and that at the time driendant's cnl-
ployes upon the train did not see plaintif.
or could not have seen him by the exer
else OF reasonable degree of prudence.