Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-11-30
Commission of ApP.sls.
TlLER TERM, 1881

Oliver S. Kennedy VS.. A. R. Emory ct
al; appeal from TarrAnt. Trespass to
try title. l. Under al executory contract
upon total failure Of performance on the
part of the vendee the vendor las the
right to either sue for the purchase m honey
and forecloss his mortgage, or he may
rescind the contract and recover the land.
Where there has been part performance
by the vendee, rs paying portion of the
purchase moneyion taking possession, and
making improvements under the contract,
he would be entitled to reasonable notice
Of the vendors intention to rescind. But
where the yendee has abandon ed the con
tract, even though he has paid part,
The vendor need not give him notice OF
his intention to reeci2d. Aft med. Acker,
p j.
Charles Wolfe vs. G NJ. Brass; appeal
from Travis Suit by appellee sgainst
appellant 10 compel him to removs ferc-
ing and other distractions from an
alley, and for al Injunction to pre-
vent him from ever closing the
same for any other purp ses
except that OF 6 public slley
!. To constitute dedication so as to
estop the proprietor and his privies, there
need not be formal grant by deed nor ia
it lie ceessrY that U.S. Dy the public should
be continued for 80 long time IS to raise
the presumption OF o grant. It is sDfflcien,
il there hxs been some act or declaration
upc n the part OF the owner Of the fee in =
dlcatiug ulequ!v ocslly his pur pose to
dedicate, ard the public has used the
property for the purposes 10 which the
act or declsrStion CT the proprietor iu-
dicstes II YVES his intention to dedicate it.
2 Where witness told an attorney for
Inc defense that the land had been en-
closed six or seven years, and thst he
would SO testify, and when he was plsced
upon ihe stand ne testified that the LAND
had been enclosed a shorter period Of
time than he stated to counsel, and thai
ne koew this DY reference to an entry In
his diary made st the time of the epclos-
ure, but St the time of his statement to
counsel, he did not think Of his entry in
his diary. Held: This state OF facts
would not JUSTIFY the court il granting 4
new tris! On the ground Of surprise and
newly discovered testimony. No error.
Aft med. Aczer, P j.
The Bradstreet Company vs. Robert
Gill; appeal from Bsstrop Suit by ap-
peliee To recover damages for appellant
falsely reporting him to the commercial
houses Of the UniIed S!Ites "then md.
there unable 10 meeJ his outstandluefn-
deotednees and would Soon fail. ~ Plain.
tiff alleges that these false stktements
We made TO parties from Whom bs
purchased gooiar and Others Bsth
whom be dsalt, and that. Nhere-
by he was damaged In tas
sum OF $4,000. The petition slfegsd.A ut
appellant was foreign corporation dS1rs
business in the Ualted States sEa in
T 1ss, in Bsstrop county, and thatit b. d
that it had sny local ageut in Bsstrop
county, and pleaded in aostement to the
jurisdiction Of the court. l. twas error
IN the court to charge that appellant had
local agent in BasErop county, and that
the conrt had jurisdiction. This WAS q
question OF fact TO ne submitted to the
jury under proper Instructions from the
court. 2 Agency or not is question OF
law to be determined by the relations OF
the parties as they In fact exist under
their agreement or acts. II relations
exist which will constitute an sgency, II
will be an agency whether the parties
unde stood ii to be or not. In . petit.
ton IL suit Of this character, 1t should
set out not only the meaning Of the words
or libel, but should state explicitly what
The libel was. IL Is not suf1 sient in thi J
kind Of q suit to state the substance OF
the Language used, or Its meaning. The
general demurrer to the petition should
have been sustained. 4. There Was no
error in permitting witnesses in posses.
sion OF the key to appellants reports to
explain what WAS meant By reporting q
merchants standing Sin blank" the evils
dence showing that plaintiff WAS 30 re.
ported. 5. The court erred In permitting
witnesses 10 state what eject, in CONNER
cial circles, such rating as given appel-
lee would have upon 8 party. This wss s
mere opinion, and this question should
have been left TO the Jury. Reversed and
remsnded. Collsrd, j.
r, W. Choate ct NJ. vs. Henry T. Kluge
ct a.. appeal from Travis. Suit by sp-
pellees against appellants to recover
damages for TIE illegal SEE Ire and sale,
under execution. OF forty-nine head OF
horses. l. The statute requiring 3 charge
to be in writing !s merely directory. 2.
All persons whether psr!ies In interest CT
not, who participate in an illegal levy,
are !respEssers, in such levy, both
the attorneys who directed it,
and the principal for whom
they sc.ed Will De held as t.espsseers. 8.