Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-11-16

respondelce. The memorandum or agree
ment required by the statute need not De
signed By both parties but only by him
VINO is to be charged bySt. 2. The agree
ment or memorandum in writing should
be 80 reasonably definite and certain with.
in itself, or other writing referred to, as
to parties, considerations AID subject
matter thstspecifo performance. can be en-
forced without resort to psrol testimony.
| 8, The courE in its charge made a dis
! tincticn between false representations and
innocent mistake on Rkker'e part. II
struciiors were asked by Watson remoy.
Ing this distinction, which were refused
by the court. Held: The chsrge refused
should have been given, or a Ike charge,
informing the 1ry OF the effects OF mutual
mistake upon question OF RECESSION, and
upon question Of damages, il the RECESSION
should be refused, and any damages be
proven as resulting from such mistske.
4. Il suit upon promIssory note given
fer land is not an action brought upon
c0ntrsc. for the sale Of land, bus is upon
= promissory note given for the purchase
morey for land, and although il may not
De such memorandum as satisfies the
statute, the maker cannot avoid the note
which he dss given, 2becAuse IL has omit
ted to bind the vendor. Reversed and
remsnded. Walker, j.
J. 3. Howell vs.. Ben T. Estes e. al;
error from Collin. Daniel Howell built
tao trick houses on Two contiguous lots
in the city OF Mckinney. The upper
stories of the two buildings we're r5scaed
by stairway which WAS wholly within
one CT the bulldogs ald On the lot Oh
which the building was situzted. Howell
die and devised By will the building con.
tanning the stairway TO his son, J. 8.
Howell, the appellant in this case, End
tie Other to his daughter, Mrs. Estes,
wife Of the appellee, Ben T. Estes. PLATA
{ & in error having denied Inc use Of tue
! stairway az an approach to the up
pr rooms OF tina other building,
this suit was brought by defendants
in error to erioin him from
interfering with the free use Of the stsir-
way by defendents in error and their tsn-
ants. Upon g fl al hearing s psrpetuation
OF tue INJUNCTION was granted. /. The
estate retained by Howell, deceased, be-
ing used by him at the time of the devise
for the bepAdt Of the other, bY means Of
an obvious artificial conveyance, and such
uae being necessary to the enj oymens Of
she latter In its existing condition, 1t is
to be presumed that he intended to con
veY the estate accompanied by the ease
ment. No error in the judgment Of the
court below. Affirmed. Gaines, J.
Missouri Pacific Railway Company vs.,
J. G. Somsrs; appeal from Hunt. Ap-
pellee was brakeman In the employ OF
appellant company and brought this suit
to recover damages for personal injuries
received in the course of his employment.
1t Ia shown that cabooee on which appsl-
lees place Of duty WAS had defective
brske, and thGt appellee knew OF this.
The brake could be easily set, but in
order to turn it { # II WAS necessary to go
to the rear platform, getting upon the
lower step, and then in STOPPING
posture. While appellee Was cn the
lower step CT the rear platform
Of the caboose ia STOPPING posi-.
ton trying TO turn OF thu brake
his head vas struck OF q cattle guard and
ne sustained injuries iof which he brings
this action. Appellee testlfss
that he knew CT several cattle
guards along the road that
were Improperly constructed, hu. thst bs
did not know Ct this particular one. II
! appears that ell the csttle guards on the
road were built il substantially the same
way. Held: We cannot say that ap-
pellee did not know OF the improper COM
structioD If the cattle guard. II he did
he cannot recover. TIE verdict OF the
jgry is rot supported By the evidence
Reversed and remsnded. G,inee, ].
n. J. Hart vs. Max Epstein; appeal
from Hunt county. Salt by appellant to
carcsl deed made to appellee By Lib
Hart. Appellee Claimed toe land through
tina. deed and the appellant claimed it
through one subsequently made by Lib
Hart. Lib Hart, wishing to borrow $3.50,
approached Max Epstein, es the agent Of
E. Epstein &: Co, for tast purpose. Ep~
stein offered TO let him have the money,
provided he could give good security.
Hart agreed to give Epstein his note for
S45G Is, and an absolute deed to 1873
ACRES Of land, valued st Is per acre,
with the agreement that If the note
vas not paid st maturity, the deed should
become in fact absolute; in case the note
was paid At maturity, Z d iein WAS to re-
convey to Har'. The note called for 10
per cent attorneys fee II the same was
collec;ed by law. In consideration OF
these agreements Epstein advanced Hart
$3.50. When the note became due Hart
was unable to pay same. l. II the money
delivered TO lib Hart was not intended
by the parties to be at the time
an actual payment foI the land, and
nothing else, It must have been q loan.
Ii 1t was loan, the deed was made to
secure 1t, and WAS necessarily 3 mort
gage. The acts of the parties show that
the money passed to Lib Hart as loan.
2. The relation OF debtor and creditor
being created By the papers and attend
ant facts, the deed was but mortgage,
and the right Of redemption could not be
cut Of BY any understandings or agree.
ments then made. The transaction wss
& mortgage, and not conditional sale.
3. The persons composing the arm Of
e. Epstein & Co. should be made parties
defendant. Reversed and remsndsd
Sta, ton, C. ].
Commission OF APPEALS.
Oorrespensence OF the Gazette.
TYLER, Tx Nov. 14-White, Bare.
foot & Bryant Va. Mary A. Boone, ct n.
appeal from Montsgue. 1. A reti,ing
partner is not discharged from existing
liabilities Of the coparts ership-aor from
sn unexpirsd leKse made before retire.
ment. the fact that the remaining part.
ners have agreed with him to pay the