Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-09
SUPREME COURT.

TYLER, TEX, Dec. is. s. Floyd eft
al. VS.. J. P. Patterson; appeal from
Smith. Leopold, one of the appellants
was engaged in the city of Tyler as a
broker in grain, etc., was the agent of
Floyd s. Co., who had their principal
Office in Houston, and we've either brokers
or dealers in grain. The principal bust
ness done was in contracts for delivery
at future date, the commodity not to
rbe delivered, but on the profit or loss to
be paid. Appellee placed an
order, OF made q contract
with Leopld, for the delivery of
100 200 bushels of wheat III May
Leopold gave appellee a slip which was in
words and figures as follows; "Tyler
Texas, January %, 1887. J. Leopold.
agent for S. s. Floyd s. Co., future
brokers III grain, provisions, cotton and
stocks. Bought account j. P Patterson
100 200 May wheat. J. Leopold. - One
thousand dollars was paid as a margin
which was increased by further demands
to $1,000, when the trade was "'called
out. - Floyd s Co. renitted the sum of
S7b25 to Leopold to be paid in settlement :.
Leopold paid IL small amount to appellee
leaving balance OF Se76s. This suit
was brought by appellee against ap-
pellants jointly, with Judgment
in his favor. l. That the original con-
tract will not support an action, is COM
ceded by appellee, but { is urged that
Floyd s. Co were Merely acting as
brokers in the transaction; that con-
tract for future delivery of produce, in
which no actual delivery is contemplated
by the parties, but only payment of the
difference in the contract price, and the
value of the article at the time agreed
upon, is a mere wagering contract which
viii not support an action is well settled
But if the transaction be completed and
another grows ont of it collateral to it =,
and dependent upon a new consideration
the new contract is not vitiated by the
faint of the old one, and can be enforced q.
The true test is, whether the plaintiff re-
quires any aid from the illegal transaction
to make out this case. 43 Miss. 64l-4
n. H. 800. .. Where one has received
as agent of another money growing out of
an Illegal transaction he can be made to
pay it over at the suit of his principal 6.
;. II is shown that the money coming to
appellee under the contract was sent by
Floyd & Co. to Leopold; but it Is not
shown that the money was paid to.Floyd
4 Co. fOh appellee by any one. This lat
ter fact it was incumbent upon appellee
to prove in order to maintain his
suit against that firm. +. The
mere fact that they may have
been held out as brokers, and may have
ostensibly acted rs brokers, does not
show that in this case they had princi-
pal, and that said principal paid them
the money for appellee. 5. The evidence
does not support the verdict as to Floyd
G. 10 e Nl,n af
however, does not stand in the way of =
judgment against Leopold, but the re-
versal as TO Floyd Il Co. reYerSeS as to
Leopold. Reversed and remanded l..
Gaines, J.
Missouri !, PACIFIC Railway, VS.. G. B.
Johnsdn4a appeal from. Upshur. On Il
former day of the term an opinion was
rendered in this case to the effect that the
charge of the court below as to ex-
emplary damages was erroneous, but that
appellee by filing remittitur as TO the
exemplary damages, might have the case
affirmed by this court. The appellee
having filed remittitur as to the eX-
emplary damages, the Judgment of the
court below as to actual damages is af-'
firmads;% StaytonT, C.
H. Cullen ct al. vs.. NJ. Drane ct al;
appeal from Navarro. l. An assign
ment of error signed by the judge
after final adjournment can not
be considered by khis court
. Where there is no statement of facts
an assignment Of error as to an error of the
court in the admission of illegal evidence
can'ne be considered. 3. An assignment
of error that :" the court erredin oyerrul-
ing defendant a motion for a new trial on
the grounds therein stated, - there being
more than enc ground in the motion is
too general to be considered. Affirmed.
Gaines, J.
The State of Texas VS.. J. c, DEGREES;
appeal from Travis. Action 4quo war
ranto in the district court of Travis coun-
ty TO determine the qualification of appel
.lee to hold the office of alderman in the
city of Austin 1t is shown that the office
of alderman in the city. of Austin is one
of trust, but not one of value. Held:
Ths jurisdiction of the court below over
sssfT Subject matter of this suit cannot be
maintained upon the ground that it is to
recover forfeiture OF behalf of the
state. 2. When the meaning of a written
law is doubtful it should have the con-
struction which seems best calculated to
promote the public interest-upon the