Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-11-30

asS.s4ssts Seeds Ksl
The court ereF4n instructing the Jury
that 'rthe cs4tVAIue Of the horses s. the
time Of the SIZE, will constitute the meas
ure Of damages, and the Jury Will not be
governed, By what the horses brought st
the. sherif's Gale " This, however, is
corrected by an instruction thst "the
market value st the time and place Of sale
should govern 4. There was error In
permitting sppellee' Kiuge to testify that
in july, 1885, he sold horses like those
levied upor, 10 TeXsrKals, thirty miles
from where the horses seiz I'd were sold,
at certain price. 5. In view CT the fsct
thit the!e were eight or ten defendants
in the court below, win rezrly is many
diff cefauseS, 1nl fi.een or twenty
witnessee, snd that these defendants were
repr5 sented By only two attorneys, We
are of opinion that the court committed
Q material error In limiting the counsel
for defendants to only thirty-fv minutes
each in their addresses to the Jury.
While the court has the discretion as 10
this matter, we hold that same WAS not
properly exercised in this instance. Re-.
versed and remsnded. Hobby, j.
San Antonio Watsrworks Company vs..
Moury & Co.; sppeal from Bexlr. Salt
On acc punt, brought by appellees. APP
and appellants In addition to furnishing
water TO the citizens Of said city, deslt In
plum bing supplies, pipe, pottery, etc. 1t
Is shown that there were mutual dealings
between the parties, and this suit is
brought TO recover balance alleged to
be due sppellees. Appellants plead limi-
tstion of TWO yea 8. Held: The finding
of the court below that the ecc punt was
between merchant and merchant, and
thst therefore the statute Of Limitation CT
two years wss not available was corr est.
No error. Aft meo. Collard, J.
Missouri Pacific Railway VS.. j. N. Fs.
gan ct al. +; appeal from Comsl. Suit by
sppellees to recover damages to two csrs,
loads Of horses shipped over the road OF
appellant. l. To warrant the introduc-
, ton OF usage or custom
in the courEe Of trace, 1t g
necessary to show that it is uniform, rea-
sonable and notoriour, and the custom
must be established by g Witr ess or wit
nesses who are experienced In such
transactions, aud who can testify 10 the
facts constituting the customs. Ooin-
ions sre not sufficient, nor are reports,
or representations. The court erred in
permitting appellee Figan to state wha,
the custom CT the railroad was Ia deliver.
ing stock at their destination. g. The
court did not err In refusing to let appel
liant prove that they never accepted stock
Tor shipment unless under certain condi-
lions, modifying their common law lia-
bility. A usage cannot be good usage II
1t Is contrary TO law or publ policy
Such q customswould be bad because
railroads cErnot legally refuse to ship
live stock. A common carrier has nc
right to demand ct q shipper . waiver OF
his rights as O condition precedent to re
ceiving freight. A reasonable custom,
however, can be proven. 8. The court
found as conclusion OF law that the
measure Of damages WAS the difference
between the market value Of the stock in
the condition they arrived at destina ton,
and t. 9. msrketvalIe ta they arrived in
good order and condition. Held: error.
The correct measure Of damsge would De
the price, less the freight charges, the
horses would have brought ID market al
| the pace of destination in the condition
| they would have been In had the company
exercised due care Of the same Will In
its possession. 10 case OF partial loss,
the measure Of damages would be the
difference in such price, less the freight,
and the value of the animals st the same
place q. the time Of reaching destination
Reversed and remanded. Collsrd, J.
F. E. Grothauf, administrator,
vs. George Willie; appeal from
Bexsr. Suit by appellant So I'D
ministrator against appellee who Waf
formerly executor under g will Of the
saEe estate on which appellant has
now Administered 10 compel him to pay
over certain moneys alleged to have been
collected for the estate while acting SIS
executor. Appellee plead 20 the iurisdIc-
ton and general denial. The court per-
m tied sppellee to prove that as executor
he had paid out these various Gums,
which he WAS charged with appropIiating,
as expenses OF the estate, debts, etc
This evidence WAS obi 4cted to by appel
liant. Held: The defense made by the
appeilee's proof was in confession and
evidence Of the action brought against
him, and was not admissible under the
general denial. 2 The court erred IN
fAQt permitting appellant to cross examine
sn2sllee IS to the necessity OF EN- ploYips
al sorney for the estate, and the reason
ESbleAess ct his fee. Reversed and re-
Rsndad. HobbysJ.