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

w. Mitchell; appeal from Smith
On former day in this term
an opinion was rendered in this
case to the effect that the charge of the
| court below as to exemplary damages was
erroneous, but giving appellee the privi-
| lege OF having the case affirmed rs TO ac-
tual damages on the fling of a remittitur
as to exemplary damages. Such REMIT
itur having been duly filed, the case will
now be affirmed as to actual dap56ks
Stayton, c. j. ~ -
Missouri Pacific Railway #. .8e
Skinner; appeal from Denton. Thss5-is a
written agreement signed by thSsdttor-
neys for appellee and appeIlaffNSto the
effect that the case be reversed and rem
dered i'll favor of appellee for $1,000.
Held: Judgment will be entered as per
agreement of parties. Stayton, c.. j.
Missouri Pacific Railway ct al VS.. w.
| N. Brazil; appeal from Smith. Suit by
| appellee for damages for personal inju-
ries, both actual and exemplary. APP
| pellee was injured December 26, 1887 {.
On January 6, 1883, following, he in
consideration Of $500, then paid to him,
executed release, which was pleaded in
bar of the action. Appellee set
up that he did not have the
mental capacity to contract at the
| time of the execution of the above men
TONED release. The $500 paid when the
release was executed, was never paid
over, but ON the trial in February, 1888,
same was rendered to appellant in open
| court. l. Appellant requested this
| charge, which was refused: "Under the
| pleaiings and evidence in this cause, the
| jury viii find for the defendants, unless
the release read in evidence, is invalid by
reason of plaintiff IS insanity, under the
rules of law given you in charge by the
| court; the release can not be avoided by
reason of any supposed erorr in its pro-
| curement.'' Held: In the absence
of a similar charge by the court,
under the pleadings and evidence, this
| requested charge should have been given
2. All the conversation that passed be-
| tween the agent of appellants and ap
| pellee at the time of the execution of
| the release was admissible in evidence.
| 3. WIZ it is shown that an instru-
ment was signed and delivered by the
| party, whose contract it is made to evil
| dence, in the absence of proof of some
fact that will invalidate it, the capacity
of its maker to contract and all other
facts necessary to the validity of the
contract are sufficiently established to en-
| title the person claiming rights under
| the instrument to recover. 4. Sanity is
presumed, but where this presumption is
| one of fact and not of law, and where
| there is an issue made as to sanity, and
| evidence introduced under it tending to
| show insanity, it is error for the court to
instruct the jury that the law creates
presumption the one way or the other.
| 5. In civil cases, whatever may be the
issue involved, it is not requisite that the
person on whom rests the burden of proof
shall establish his case by a greater
weight of evidence than
tair preponderance 6. There has
been some conflict of decision
whether the contract of an insane person
is void, or voidable, but the great weight
of authority, holds the contract of such
trpersons only voidabie. [45 Tex. 413-
Whar. Law Cont, 98-llS; Pollock's
Prin. of Cont, 7G-84.; Arson on
|, Cont. III; 3 Kent's Com, 500 Z. If
by his acts done at time when he had
mental capacity to have made contract
absolutely releasing appellants, appellee
clearly evidenced his intention to be bound
by the contract he had made, then he
ought to be held bound, and no subse-
quent change of intention ought
to Offset the rights of the parties
ability be subsequently restored to sound
mind, and then with full knowledge of
his previous acts, and of the nature and
extent of them, will deliberately adopt
and ratify them; if he will knowingly
and in the exercise of his proper facul-
ties take the benefit of a contract made
while he was insane, it is competent for
him to do so, but the consequence will be
to give full effect and legal validity to his
| contract which was before voidable.
8. 1t was error in the court below
to instruct the jury that exemplary dam
ages might be ''given as q kind of pun
ishment - The jury were left to infer
that this might be done in this case, if
the defendants knew of the general bad
condition of the road prior to the acct
dent, and permitted it to remain so,
without reference to whether the injury
of which appellee complains, resulted
from that known general bad condition.
Reversed and remanded. Stayton, c. J
J.V. Hudgins ct al. VS.. NJ. SAMSON,
guardian, ct al: appeal from Johnson.
F. N. SAMSON died testate, and by his
will gave all his real estate to his daugh-
ter, Mrs. Hudgins, his three minor sors,
and his grandson, each taking Il one-tifth
interest in same. After his death Mrs.
sliIS, OIS VI UtNdLut lu0
guardian of the minor children and by
the direction of the probate court, resided
on the rural homestead of 200 acres of
land. The probate court directed all the
real estate except 200 acres comprising
the homestead, to be partitioped, but as
to that refused to order partition, on the
ground that it had been set apart for the
use of the three minor children.
From that decree an appeal was taken to
the district court, which court affirmed
the judgment of the probate court.
Held: We see no reason why the home
stead may not enter into the partition of
the estate and be disposed of in any man
ner which does not take away the right
conferred upon the children to occupy it.
The Judgment is reversed, with instruc-
tions to the court below to enter a decree
directing the partition of all the real es-
tate, including the homestead, subject to
the right of the guardian of the minors to
occupy it with them during their minor
ity, unless the proper court shall sooner
withdraw its permission for the guardian
to so use it. So ordered, Stayton, C. J.
Charles E Brown ct al. vs. s.. h. Wat
son; appeal from Ellis. l. The liability
of the parties as members of a partner
ship, is determined by the entire facts in