Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-12

/ VIZ: the company vendors. This was not done,
and for this reason the report is not entitled &c
full faith, If for no other. Judgment ia here
i rendered for appellant.
Julius kaufman ct al. VS.. John B. Wolf,
assignee. from Milan county; opinion by
neousIy paid money to creditor not entitled to
distributive share, and in an action broughi
against him for Incorporating the fund. in
which his sureties were not made parties, iudg-
ment was recovered against him. Wolf, the
substituted assignee, brought this action on
said judgment and the bond against Wynne and
his sureties. The sureties set up the statute OF
| limitation, which was overruled. The question
is, did the statute commence running At the
time Of the misrepresentation or the rendition of
the Judgment in the former suit. The breach OF
the bond occurred and the right Of action &C
cTued IN favor of the creditors at the time OF the
misappropriation, according 10 the WORDING OF
the bond. The statute declares that there shall
be commenced and prosecuted within four years
after the cause OF action has accrued, and not
afterwards, all actions or suits IN court. rms
statute is decisive here. More than four years
elapsed between the time their cause OF action
accrued and the institution of this suit and it
the statute of limitation will run from the time
cause of action accrued. The cause Is dis
missed as to Kaufman, Runge and Perry, the
sureties. and remanded as to Wynne.
R. Lansing VS.. j. D. Risinger. from Lamar
county; opinion by Hurt, ]. The question in
this case is whether the facts show sub-tenan-
cy or not. In our opinion they show an assign
ment of part of the crop in payment Of wages,
subject to rent claim. For this reason the ludg-
ment is reversed and remanded.
Dallas and Greenville Railway Company VS..
Mrs. Martha Chenault ct al, from Dallas coun-
ty; opinion by Hurt, j. This was condemns
ton proceeding ending in verdict and tudg-
ment for appellees for Sl5n. On the trial the
right of the company to condemn was admitted;
the company then voluntarily introduced its evil
dence, and afterward on the strength OF this
claimed the right to open and close the argu-
ment. Held: Defendants had not waived their
right, the company introduced its evidence
first on its own volition. 1t was not error to ad-
init he mir ~ Nuif
damages or depreciation In the land, as no abso-
lutely certain testimony as to that amount can
be had. The charge of the court laid down the
measure of damages as being the difference in
value Immediately before and after the taking,
to be shown by the defendant by preponderance
of evidence. This charge is correct. Affirmed
Jonathan Mills VS.. Mays & Wright, from Tom
Green county; opinion by White, P. j. Plain
tlffs sued for balance due them by defendant for
services rendered referring to an exhibit for the
particulars as to the services, time, date, items
amounts, etc. No allegations as to time, items,
etc., are made in the petition proper. Defen-
dant excepted specially because the petition
showed no cause Of action, and because the al
legations were too vague, indefinite. etc. Held:
Exhibits will not relieve the pleader from max
ing the proper allegations OF which said exhibits
may be evidence. Rule 10, district court. The
petition should refer to the exhibit only to aid,
elueidate and explain the speclhc allegations
Tex, 1917 50 Tex. 62I; 60 Tex. $780,. Guided by
this the petition did not allege good cause of
action, and it was error to override the excep-
tions. Reversed and remanded.
Johnson & Carleton vs.. J. R. Nasworthy,
from Tom Green county; opinion by White, P.
]. Suit on so-caled guaranty, by which ap-
pellee obligated himself that certain premises
sold by him to appellants would bring rental
of $50 per month for one year, provided the
buildings, improvements and 'appurtenances'
remained in condition on day Of sale. APP
pellee claimed he was discharged because lot
of blacksmith tools, which constituted the ap-
purtenances at day of sale, had been removed,
contrary to the proviso in the contract sued on.
Held: Appurtenances such things as belong
to the land part of the realty. They are pure-
ly incorporeal hereditaments usually annexed to
the land. The meaning of the word when used
in deeds, etc., is well defined and not ambiguous
and it was consequently error to admit testimo-
ny to show that blacksmith tools were, in this
instance. appurtenances. The trial court
charged that the right of plaintiffs to recover de-
pended on notice having been given by them to
defendant of their failure to obtain the stipu-
lated rental. Held: The contract did not re-
quire such notice. Defendant was not guar
antor, in the proper sense of the word. A guar
anty is collateral undertaking, and in such
cases notice is generally required. But in this
contract there was no collateral undertaking.
Nssworthy was the principal, and his contract
was simply warranty that the premises should
bring $50 per month, and he was not entitled to
the notice commended for. Reversed and re-
manded.