The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-05-15
COURT OF APPEALS,

the county court on three notes aggre'
eating over $500, secured by chatteI
mortgage on over 230o head of sheep
On writ of sequestation 1858 head o.
these sheep were seized, and in the af
tidavit for the writ plaintiff swore the
sheep were worth so cents per head
This would make the sheep seized
worth $l150. This sum is beyond
the Jurisdiction of the county court
"The matter in controversy was not
only the debt but the security given
for its payment. The litigation com.
pretended as we'll the subject matter
of the mortgage as thedebt." e Tex.
235; % Tex, 7. The county court had
nojurisdiction and the case is reversed
and remanded for proper disposition
in said court. Opinion by White, P.
j.
T.J. LEWIS EFT AL. VS.. D. ]. MERCHANT
EFT AL from Callahan county.
In suit by appellees against ap
peliants for damages, money overpaid
and for breach of a written contract,
appellants interposed special
exception to the suficiency of the
petition to warrant recovery of special
damages. The matter alleged as the
basis for special damages is as follows
'"That at the time of making the con-
tract with defendants, plaintiffs mott
fed them that they were buying the
cattle to fill a contract with other
parties, and that any failure upon the
part OF defendants would incur pen
atty and damage suit against plaintiffs ;
and that the contract was made with
the full knowledge of defendants that
if defendants made any default in de-
livering said cattle plaintiffs would in
cur great loss" Held, the petition
is not sufficiently specific to warrant
recovery of special damages. But in
asmuch as the statement of facts
shows that the market value of the
cattle was at least $1.25 per head
greater at the time they should have
been delivered than the contract
price, and as appellees were entitled
to recover that amount per head for
317 head which appellants failed to
deliver, and appellees did recover a
verdict for 1922 as damages, such
damages are ordinary and not special
damages, and the judgment is af-
firmed. Opinion by Hurt, j.
H. b. HENRY VS.. j. S. CHAPMAN, from
Denton county.
The appellant, Chapman, and one
hoI hnnro I'm in q
stock business prior to January, 1885.
At or about said date the firm was
dissolved, Chapman acting as agent
for Henry, who livedin Alabama. On
January 5, 1885, Chapman sent Henry
500 of the money due him on the
settlement, and January 18th he for
warded to him full statement of the
settlement, which showed balance
due Henry then of $39.71. In the
letter accompanying the statement
Chapman used the language: "Your
$39.71 1 will make good to you. Twill
have to do it out of individual MEANS"
This sum of$39.71 having remained I'M
paid on February3, 1887 Henry institut-
ed suit against Chapman, alleging that
he (Henry) had accepted the state
ment sent him by Chapman as final
adjustment of the partnership affairs.
Held, the suit was in effect an action
n account stated; i. 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 mis-
take. The court should therefore
have sustained the exception and mo-
ton to strike out that part OF defend
ants answer which, without setting
up fraud or mistake, tried to re-
open the entire partnership business
and to readjust the accounts between
the partners, on the ground of alleged
errors in computations. The court
should also have given the special in
structions requested by plaintiff and
recognizing the law as above stated.
For these errors the cause is reversed
and remanded. Opinion by White,
P. J.
G., y. ~ >. r. ny. W. w. D. We ODoh:
from Runnels county.
Appellee recovered a judgment
against appellant in the justice court
for $3.50 and the case was removed to
the county court by certiorari. Appel
lees motion in the county court TO
dismiss the certiorari on account OF
the insufficiency Of the petition there
for was overruled and appellee ex-
cepted. Appellee obtained againjudg-
ment for$150. The company appealed,
assigning errors and appellee filing
cross assignment based upon the al
legged erroneous ruling of the county
court on his motion to dismiss the GER
tiorari. The petition fails to allege di'
rectly or circumstantially the facts that
were in evidence on the trial in the
,ustice court. 1t does not purport to
set out all the facts, but contains some
facts with several differences. The APP
nlication for the writ of certiorarl
should show that the applicant has
rights, or a valid defense OF which
he has been deprived by the
erroneous action of the court,
mr. that without fault on