The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-05-19
THE HIGHER COURTS.
Court OF APPEALS.

International & Great Northern rail
road VS.. Charles McCown; from Travis
county. White, p.j j. This is suit by
appellee for $3.50 in money and $50, the
value of clothing, lost from his trunk
while travelling on appellants road,
Judgment was rendered in the County
Court on appeal of 500. The evidence
showed that appellant was preacher
residing at Brenham. The money was
placed in his trunk at that place, with
his clothing. He went from BRENNAN
to Temple; from Temple to Austin and
thence to San Antonio. The loss wat
sustained between Austin and San An
tonic or at the latter place, at which
point the trunk was discovered to be
broken open and the clothing and
money taken from it. Held: A passen.
ger can carry as part Of his baggage
such reasonable amount OF money foI
travelling expenses as would be ordinar.
lily required for such journey. What is
reasonable amount of money for
travelling expenses depends upon the
length of the journey, and should not
exceed what prudent man would take
with him under the circumstances,
| What Is such an amount is question
for the jury. (Thompson on Carriers,
51l; Missouri Pacific railroad vs. York,
5; Texas Law Reviow, 17D. Baggage
includes money bona fide carried in the
passengers trunk for travelling ex-
penses and personal use to an amount
not exceeding what prudent person
would deem proper and necessary for
that purpose, but not money beyond
that amount or intended for other pur-
poses. (Hutchins on Carriers, p. $780,
| For money included bona fide in the
passengers baggage for his travelling
expenses and personal use on the jour
ney, mot, however, exceeding q
reasonable sum, q passenger carrier il
liable as an insurer. (Schouler on Bail
ments, p. 345). The judge having found
the money in this case to be a reason
able amount for such a journey, as is
shown in this case, his finding will not
be disturbed. Affirmed.
j. w. Barton q Co. VS.. Exchange
bank; from Dallas county. Wilson, !.
Appellants executed and delivered TO
one Omerod the following instrument
in writing; "Dallas, Texas, February
20, 1883-Received from the City Flour
mills 5000 pounds -four, G. IL. at $2.75,
FApfsOOg DhO CbbObOA NJ 1000
j. w. Barton IL Co.; endorsed, j. One.
rod" Appellant purchased the above
instrument from Omerod for valuable
consideration. At maturity payment
was demanded, but refused In whole,
appellants rendering one-halt of the
amount, and claiming that only one
half of the flour called for had been re-
ceived. The evidence sustains appel
lanps plea of tender as well as failure on
consideration. Upon appeal TO the
county court Judgment was rendered
for appellee for the full amount. Held:
The obligation sued upon Is nom
negotiable instrument Daniel on Neg.
ms, secs. l05, 1867, and was acquired
by appellee before maturity, for valu-
able consideration, In due course of
trade, in good faith, and without a
knowledge on the part OF appelle of any
event Of failure OF consideration prior
to its acquisition. Appellee, therefore,
could not defend against it by showing
a want of failure OF consideration either
in whole or in part Cart. Z72, Rev.
Stats) Art. 576 apparently conflicts with
Art. 272, but the two articles are pari
materia and must be construed to-
gether, and 40 confirmed, If it can be
reasonably done, SO as to give effect To
each. This can be done so as TO make
them both operative and yet not con-
tlicting. "Our construction is that Art.
~ relative specially and exclusively to
the deienses Of a want or failure OF
consideration, and that these particular
d0feses can be interpOsed only in the
instances specified in that article, willis
Art 267 relates to and embraces all
other detenses except those Of want or
failure OF consideration Besides, Art, 267
is general In its terms relating to all de.
lenses, while Art, 2l2 is special In It's
terms relating TO specified delenseE
only and a special controls q
general STATUTE" The judgment In 10.
vOr of appellee being correct, IL is i'm,
material that errors may have been
committed by the court In Its conclu
sions oflaw, or that the judgment wa,
based on erroneous reasoning, the re-
suit being as under the law 1t should
be. Affirmed.
Crozier ct al. W. Stevens ct al; from
Cook county. Walker, p. /. Adopted
An endOrser Of note which holds d
vendors lien on land has no right &c
require the owner OF the note to sue fOl
the enforcement of the lion and tC
subject the property to sale for the pay.
ment of the note as condition preca
dent TO his liability to have Judgment
rendered In tho case on the note as sucl
endorsed. Nesmuth VS.. McLemore. 2S
Texas, 1927 The Judgment providing
that the property should b0 hrst sold foT
satisfaction Of the Judgment, accorded
the endorser all rights TO which he war
entitled in this action for protection
as endorsed. The controversy being a,
to whether the transaction had will
plaintiff in the transfer Of tho motto wa,
a sale Of II by the endOrser, or whether
the real transaction was that OF loaI
to him for the repayment OF which the
note was given, and that no endorsed
IL for accommodation In order to ena
bic the maker TO effect the loan, Tn,
court erred in excluding the question
| prOpounded to s., "lf nj the time the dc
PENDANT G.. (the endorser) endorsed the
note in this cause he did so ~ surely
for the defendant g. (lhe maker) at hil
request; such evidence being ne,
gestae and not contravening tho rule o
evidence which disallows parOl eyi
dence 10 vary or contradict writer
instrument. Green, En-, sections 2S2
los. The mere forms under which
transaction proceeds is not The
decisive test as to whether plaintim
may be affected by usury in the note
IL tho transaction was, In substance anC
fact, loan of money by the plaintiffs L
the defendant, the mere fact that it wa
made payable TO the endorser, and by
him endorsed to plaintiffs, will not alte
its legal features nor serve 10 avoid thu
consequences attaching to usurioui
contract. If a note IL offered for dis
count by the maker; If the discoun
from it's face value were greater thar
that allowed upon loan, IL is usuriou
as between the maker and the party /,
whom II is delivered. Reversed and re
manded.
G. w. Wilderman W.. w. Il. Harring
ton; from Tarrant county. Delaney, (.
adopted. The facts OF this case ar,
about those; Appellee owned golt
watch, which he loaned to one RYAN /,
wear for a time. Ryan, without appel
lees knowledge, pawned the watch /,
appellant for $25. Some time afterwart
appellee made inquiry of appellant anC
was informed of these facts. He thei
asked when the time for tho redempt ioI
Of tho watch would expire. Appellan
| iDiOrmpd him and agxad uNNhaf NJ a.