Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-04

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6. Y. SMITH d CO.
lions should show whether it is first or
subsequent application for continuance in
order that this court may revise the action
of the court below in passing on same. We
cannot presume that it was first apph-
cation, Isl Texas, 46. but even if first, it
was insufficient for want of diligence
3. The appointment of surveyors and the
ordering of a survey is addressed to the
sound discretion of the court and will not
be revised unless there is clear abuse of
that discretion or manifest injury TO
the party complaining. Affirmed. Collard,
j. Section AZ
B. L. Taylor VS.. A Deseve; from Bexar.
Suit by appellee TO recover for boarding the
infant daughter of appellant. /. Appellee
testifes and contends that appellant gave
him (appelleeJ his (appellant's) daught>
for adoption, and that appellant after elevers
and half months took her away from APP
pellee. The latter testifeS that no papers
of adoption were prepared and signed, but
that there was a verbal agreement only.
Appellant denied that he consented to let
appellee have his daughter for adoption,
but alleges and testifies that appellee
agreed to board the daughter referred to
and another child for $40 a month, while
appellant was absent in Europe. Held:
Appellee was entitled to recover. Appellee
could recover regardless OF whether he was
willing for appellant to take the child back.
There is evidence to support the verdict,
and we cannot disturb same because OF u
conflict in the testimony. Affirmed. Mari,
j. 'ScctiOn A
f. Dosche, Administrator, VS.. August
Nette, ,Ir. /; from BeXar. Suit by appellant
as administrator of the estate of y.
Schloeman. Judgment creditor of A Nette,
ST., against A. NctJe, Jf., to set aside
voluntary conveyance TO Z lot in san
Antonio made by 4. Nette, ST., TO \. Nette,
Jr.. appellee herein, on the ground that
said conveyance was made with intent to
hinder, delay and defraud creditors. Hel1a.
l. The court should have instructed the
jury as requested, that if the conveyance
was made with view to protect the
property of the donor from future debts,
and with intent to defraud such creditors,
it would render the conveyance void.
There was sufficient evidence TO authorize
this charge. ,. There was error in per
hitting defendant to testify over objec-
tions, that appellant presented claim to
him for $1,000 balance due on the judg
ment against Nette, ST., which was re-
jected as ian unjust claim" The claim
itself with its endorsements was the best
evidence, and the statement that the
claim was unjust was nothing more than
the opinion of the witness and calculated
to prejudice the jury. Reversed and
reminded Collard. j. Section A.
j. NJ Cuilers vs.. D. Platt ct al. from
Grayson. Trespass to try title instituted
by appellant. /. Agreements of counsel in
| regard TO the trial of cause are not abso-s
Lutte, although IN writing, it resting with
the court to sustain such agreements and
the court sets same aside, the party COM
planning must show injury, or this court
| will not revise the discretion Of the trial
court [6S Tex, 1921. ?. Where there is
repugnance between general and par
ticular description in deed the latter will
control, although whenever it is possible
! the real intent must be gathered from the
whole description including the general as
well as the particular. 3. Where grantor
conveys specifically by metes and bounds,
so there can be no controversy about what
land is included and really conveyed, gen.
eral description, as of all of certain tract
of land conveyed 10 him by another person,
or, as in in this case, all of a survey except
tract belonging to another person, cannot
control. for there is specific and particu-
lar description about which there can be no
mistake, and no necessity for invoking the
| aid of general description. Affirmed. Gar
| rett, p. ]. Section B.
Gulf. Colorado and Santa Fe Railway VS..
J. T. Wills; from Brown. Suit by appellee
TO recover damages for personal injuries,
same being inflicted by reason of the wreck
OF hand car, and the accident being cause0
by defective wheel. l. The section fore
man was not the fellow-servant Of appellee
who was orc nf the section hands rs Tex,
); 5S 'rcr OF Tex, 401; 63 Tex, SEC;
80 Ten, and many authorities from
other s2s-,s /. ,. Appellee was ineXperi-
enced in railroading, having been employed
in the occupation OF working on the section
some three or four months before the acct
dent. He testifies that he called the atteu-
ton of the section foreman to the defect in
the wheel of the hand car and that the latter
informed him that the defect in the wheel
did not render the car dangerous. Held:
The declaration of the section foreman with
reference to the defect in the wheel not be-
ing dangerous. were admissible. he being
the representative Of the company, in con-
troll of the car, and appellee working under
his orders i Sher. and Red, on Neg, sec.
FOG; 10 Tex, 6; Is Am R., 4l31. If the en-
ploye be ignorant OF the danger, or it is not
apparent, or the defect is OF such character
that danger would not be implied, the
servant can rely upon assurances OF the
master that the machine with Its defects Is
not dangerous, the employee acting upon
said assurance can regard it as an invita-
ton to remain III the masters employ
free of the risks incident to the use of the
machine with its defects 4 Am. ST. r., 251;
62 Mo-, 232; a Am. r., 30, and other au-
thoritiesl. Affirmed. Fisher, j., Sec
ton b.
Western Union Telegraph Company VS..
7 c.. Jones; from Grayson. Appellee
brought suit for the non-delivery of the
following telegram sent b. his brother:
~ c. Jones, Browrwood, Tex: Mother
is not expected to live but short time. G.
+. Jones' The telegram was sent May 10
and delivered May Il. The mother of
appellee died May Il and was buried May
IL. Appellee knew nothing of his mothers
sickness until the receipt of the telegram
and nothing Of her death until the 10Th of
May, when he received IN answer to sec
ond telegram sent, saying she was dead. l.
The submission 20 the jury Of the agency
Of appeilee's brother. If error, was harm