Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-06
THE HIGHER COURTS.
synopses Of Decisions Rendered at the Present
Austin Sitting.

Austin Sitting.
Correspondence OF the Gazette.
AUSTIN. TEX, June flames W. Tufts VS..
7. L. Lawrence s. Co., from - county; opin-
ion by Henry, j. On May 9, 1885 appellee placed
an order with appellant for soda water appa-
ratus which had to be manufactured according
to appellee's satisfaction. On June 2 the APP
pellee sent telegram to Tuft, saying "'too late,
don't send soda fountain but appellant finished
what had to be done to the apparatus yet and
sent it to appellee, who refused TO receive it, and
suit was instituted to recover for breach of con-
tract. The apparatus had to be manufactured,
the contract was, therefore, executory Benz.
in this state, laid down in II Tex, 420, in an
eIecutory contract the property in the thing
does not pass to the rendee until the thing is
completely finished and either actually delIy
cred. or set aside to, appropriated to and &C.
copied by the vendee. Tufts had no right to
finish the apparatus and ship the same after re-
ceipt of the tie legram on June 2 repudiating the
contract, but In the action for breech of the
contract the measure of damages, according to
the above doctrine, was the difference between
the contract price aud the value of the goods in
the condition they were when the telegram was
evidence shows clear braech of contract by
appellee without excuse. and the verdict OF the
jury in favor of defend ant should have been set
aside. Reversed and remanded.
W. P. Whitman vs., Annie Haywood, from
Collin county; opinion by Henry, ]. The sub
stance of this controversy is as to the true bound
and ls4S respectively. An elm tree is called for
but as there are two elms, some distance apart,
the question is, which is the true one? The
court admitted statements on this point OF two
former owners of the respective tracts made in
1857, both dead at the time of trial. their state
ments being to the same effect, but were not
made by one in the presence OF the other. The
admission of this evidence is assigned as error.
In sc Tex 80 1T was held that in matters OF bound
aries of lands surveyed long ago, and the locR-
tion of which is not within the memory OF living
men, many facts tending to solve the question
are permitted to go the jury which would other
wise be excluded; 40 Tex, Sl6, is to similar
effect. Based on this, and considering the age
of the surveys.Sthe fact that better evidence
could not be .if, the fact that the owners of the
conhictinRkf srests both made the same declar-
ations iEtf than thirty years ago, and their sub
seq deaths. before the matter became lis
the evidence was properly admitted; If
ne order Of a competent court for the probate OF
q will is introduced, then the will is admissible
in evidence, and not subject to collateral attack.
Affirmed.
The Bankers and Merchants Mutual Life As
sociation of the United States VS.. Annie NJ
Stapp, from Grayson county,; opinion by Stay
membership in appellants corporation emitting
her to 5000 on death OF her husband, which the
company failed to pay, and its defense in this
suit is that deceased had failed to pay $40 due
before membership could be acquired, and that
deceased had during his lifetime failed to pay a
mortuary assessment of IS. S.. The policy con-
tanned clause denying to agents the power to
ext tend credits, etc. Deceased dealt, however,
Only with the general manager and secretary of
'edly the right to extend credit, notwithstanding
the terms of the certificate. Wood on ms. 2S-
IS. The main questions Of the case are whether
the deceased paid the premium or was given
credit thereon, and it is claimed that there was
no evidence to sustain finding in favor of sp-
pellee on either OF these issues. After a very
careful review of the facts in the case and their
bearing upon each other, the conclusion is
arrived at that il could not be SAID
that there was not evidence requiring the court
to submit 70 the jury whether the premium had
not been paid or arrangements for its future
payments satisfactory TO the company entered
into. And the court is not prepared to hold
that there was not evidence sufficient to sustain
the verdict, although the direct evidence pre-
ponderAtes in favor of the proposition that the
premium was neither paid or credit therefor
given. It is also claimed that the failure to
pay the mortuary assessment before the death
of PLAINTIFF husband defeats her right 70 re-
cover, notwithstanding plaintiff rendered said
money within the thirty days allowed for such
payment. We hold that the beneficiary in the
policy had the right to pay such assessment in
the time prescribed, whether before or after the
death of the insured. as any other rule would be
and contrary TO the language
used in the bylaws of the company. Affirmed.
Charles Aln & Co. vs.. William Radam, from
Travis county; commissioners decision. Suit
for infringement OF q trademark, and for iniunc-
tion restraining ALI & Co. from using the in
fringing trademark. R2dam recovered one cent
damages from the court. below, ana the iniunc-