Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-09
COURT OF APPEALS.
synOpses OF Decisions Rendered at the Present
Austin Sitting.


Austin Sitting.
Correspondence of the Gazette.
AUSTIN, Tex, May IN. A. Monroe ct al. VS..
L. Schwartz; from Uvalde county. Schwartz
sued Monroe and wife in the county court on
three notes aggregating over $500, secured by
chattel mortgage on over 23OO head of sheep. On
4 writ of sequestration 1858 head of these sheep
ssere seized, and in the affidavit for the writ
Fpiaintif swore the sheep were worth fifty cents
per head. This would make the sheep seized
worth $3.50. This sum is beyond the jurisdiction
of the county court. 1.-THE matter in controyer-
sy was not only the debt, but the security given
for its payment The litigation comprehended
as well the subject matter of the mortgage as the
ty court had no jurisdiction. and the case is re-
versed and remanded for, proper disposition in
said court. Opinion by White, P ID.
It. ]. Lewis ct Al. VS.. j. D. Merchant ct al;
from Callahan county, In a suit by appellees
against appellants for damages, money overpaid
aud for breach of a written contract. appellants
interDosed a special exception to the Sutiiciency
of the petition to warrant recovery OF special
damages. The matter alleged Is the basis for
special damages is as follows: THAT at the
time of making the contract with defendants.
plaintiffs notified them that they were buying
the cattle to fill contract with other parties,
and that any failure on the part OF defendants
would incur penalty and damage against plant
ifs and that the contract was made with the full
knowledge OF defendants that, if defendants
made
would incur great loss Held: The petition
is not sufficiently specific to warrant recovery of
special damages. But inasmuch as the state
ment of facts shows that the market value of
the cattle was at least ST. 25 per head greater at
the time they should have been delivered than
the contract price, and as appelees were en-
titled to recover that amount per head for 81
head which appellant failed to deliver, and ap-
pellees did recover verdict for S322 as damageet
such damages are ordinary and not spectFbEa1n
ages, and the judgment is affirmed. optn4on b
H. B. Henry VS.. j. 6. Chapman; from Denftn
county. The appellant, Chapman, anSfone
Wetzel had been co-partners in the stockousi-
ness prior to January, 1855. At or about said
date the firm was dissolved, Chapman acting as
agent for Henry. who lived in Alabama. On
January 5, 1885, Chapman sent Henry 500 of the
money due him on the settlement and January
II he forwarded to him full statement of the
settlement, which showed balance due Henry
then of 1891. Il. In the letter accompanying the
statement Chapman used the language: Your
SS9l. Il will make good to you. will have to
do it out OF individual Means This sum of
1891. Il having remained unpaid, on February 3,
1887, Henry initituted suit for it against Chap
man alleging that he (Henry) had accepted the
statement sent him by Chapman as hnal ad-
iustment of the partnership affairs. Held: The
suit in effect an action on account stated; l.
E.: an account in which the items had been
stated and balance struck by one party and was
sent to and accepted by the other as correct. and
such an account cannot be reopened except for
fraud or mistake: The court should therefore
have sustained the exception and motion to
strike out that part OF defendants answer.
which, without setting mp fraud or mistake,
tried to reopen the entire partnership business
and to readjust the accounts between the part
ners, on the ground Of alleged errors in compu-
tation. The court should also have given the
special instructions requested by plaintiff and
the law as above stated. For these
errors the cause Is reversed and remanded.
Opinion by White, P. ].
Gulf Colorado and Santa Fe Railway Com
pany ISL. W. Adams; from Runnels county.
AppeSa afecovered Judgment against appel
titinsthe justice court for $3.50. and the case
WIS removed to the county court by certiorari.
Appellees motion in the county court TO dismiss
the ce ftio-ari account of the insufficiency of
the petition therefor was overruled, and appel
lee excepted. Appellee obtained again iudg-
ment for SI50. The company appealed, assign
ing errors, and appellee fling cross assignment
based upon the alleged erroneous ruling OF the
county court on his motion to dismiss the
certiorari The petition fails to allege directly
or circum5tantially the facts that were in evi-
dence on the trial in the justice court. 1t does
not purport to out all the facts, but contains
some facts with several inferences. The appli- |
cation for the writ Of certiorari should show that
tie applicant has rights, valid defence OF !
which he has been deprived by the er=oneousS
action OF the court; or that without fault or |
want of diligence on his part applicant has been
unable to present his rights defences. Ap@ |
plying these rules to the petition in this sse IL
win be found defective, in this that it does not
show allegations direct circumstantial thati3
the evidence facts therein stated are all the
facts proven on the trial below. For this reason
the Judgment of the county court is reversed ]
and the writ OF certiorari ordered dismissed.