Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-11-12

TURNKEY Bros. & Co. To rebuff this appel
lee introduced in evidence an original petit
lion filed in the district court of BeXar
county, in which Turnkey Bros & Co. al
legged that the firm was composed of James
Is. and w. +. TURNKEY. Held: The admis-
sion of this evidence was reversible error.
1t may have influenced the court in its opin-
ion. Reversed and remanded. Tarlton, j.
Missouri Pacific Railroad vs. Patrick Nc
Kernon; from Bexar l. The evidence
shows that appellee stepped on the track
about twenty or thirty feet in front of a
moving switch engine. This was in the
switch yard and appellee testified that he
knew it was dangerous to work on the track
and necessary to keep a lookout, and that
he had a good hearing and eyesight 1t is
shown that appellants employees did all
that was possible to stop the train before it
ran over appellee. Held: The evidence
does not support the verdict. Reversed
and remanded. Fisher, ].
A. G. Lacy ct al VS.. Solomon Locl1et ct
al; from johnson. l. Under the constitu-
ton Art. is, Sec. SO, and the Revised Sta
tutes TArts. 1917, 1893, 20C2 and 2O0SI the
homestead in insolvent estates descends as
other property, subject to use by surviving
widow or minor children as provided, and
is not liable for the debts of the deceased
NtGu VI Iuc oO VI ktIl.
2G02, r. S., as provides a different rule of
descent from that of Art. IL, Sec. 50 OF the
constitution must be disregarded as void,
but the other provisions of the statute are
not dependent upon this, and can stand as
the law, not being unconstitutional. The
judgment as to the Bouldins and appellees
is affirmed, but as between appellants and
Mrs. Diana Anderson and Mrs. Anna 6.
Lacy and her husband and the appellee, the
judgment is reversed and here rendered for
appellants. MARI J. Stayton, c. j., dis
sentS for the reasons given in his dissenting
opinion in IS Tex, 52S.
Toudouze; from Bexar. l. Errors which
could not have effected the result of the
suit are not ground for reversal 2. The
evidence was sufficient to establish an
agreed boundary line between the parties.
3. An oral agreement between adjoining
owners, establishing dividing line between
their lands and a parol partition of lands,
are held not to be prohibited by the statute
of frauds, nor are they within the meaning
of tn provisions of the law that regulates
the manner of conveying real estate. II
Tex, 1913; e. Tex, 39S; IS Tex, 496.
Fisher, j.
Isaac Heidenheimer vs.. Cleveland &
Cameron; from McLennan. l. A contract
by preference, be given the construction
which will make it illegal. Where the in
tention can be made to harmonic with that
which is lawful to be done, without ignor-
ing the plain terms of the contract, such a
construction should be given. .. Where
the terms of the contract are uncertain and
its true intent and meaning doubtful. then
the practical construction which the par
ties themselves put upon the contract by
their conduct hereunder is of vast i'm
portance in ascertaiuing its true meaning
and may prevail over the literal meaning of
the contract l24 n. S., sos; 9 Wall, so;
122 n. s., 50; 46 Mo-, 12l. The contract
delivery of futures" The meaning is not
clear on the face of the written contract,
and it was therefore error in the court be-
low to charge that the contract was void on
its face and to order verdict for defend
ants Reversed and remanded. Mari, j.
Galveston, Houston and San Antonio |
Railway VS.. W. ]. hornsberry; from Val |
Verde. Suit by appellee to recover for per-
sonal injuries. l. An allegation in the petit |
ton that the depot was not lighted up |
would admit proof that i ''passway''
therein was not lighted up. This allegation |
would include ''passways" and walks"
around the depot. =. 1t was unnecessary |
to allege plaintiffs age in his petition. g. |
doctrine of comparative negligence to the |
jury. Such doctrine does not obtain in this |
state. T. There being no evidence of the |
amount of medical expenses incurred by |
appellee, the value of his lost time, ETC., the |
court erred in submitting as elements of |
damages to the jury expenses incurred and |
lost time, and they could not be controlled |
by evidence in estimating same. Reversed
ana remanded. Hobby, P. j., section a.
]. B. Cheek VS.. W. S. Herndon ct al
from Smith. Suit by appellant to recover
and. l. The court in an elaborate opinion
discusses the evidence seriatim and holds
hat same is sufficient 10 sustain the verdict |
and Judgment. and that there was no error.
Affirmed. Collard, J.
Nathan Gregg s. Son vs. W. D. Cleve-u \
and & Co.; from Shelby. |. A mortgSee1
,iven on a stock of merchandise, the mort
yagor being insolvent, which provides that
i trustee should take charge and ''sell the
property in due course of trade and to
AIRY on q retail business in the due course
If trade" is invalid and void, and evi-
lently made with intent to hinder and delay
,ther creditors. Affirmed. Tarlton, ].
Rose l. Lybrand VS.. Blankenship &
Blake; from Van Zandt Trespass to try
title. l. When land is in actual use as
the declaration of the husband
o the contrary is not admissible in evil
lence [6S. Tex, 2 2 The evidence
hows that the land in controversy was
he homestead of appellant Rose at the
ime the deed OF trust was executed. Re-
ion 5.