The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1891-05-07

appellant to use them for the contem
plated purpose so long as this was nee
essary. 3. If Taylor did not have the
right to make the transfer to Wilkt
under the ordinance then there car
be no doubt but that the subsequent
ordinance passed at the request O
Wilke as a contractor would confer
upon him the right to use the railway
in the contemplated work, and thus
operate as ratification OF the con-
tract between appellant and WilAe
4. We think that part of the ordi-
nance which declared that appellant
should be responsible to Gall persons
for any damages or injury that may
result % him or them or their prop
erty from the construction, use and
maintaining said railroad" was evil
IDENTIFY inserted for the purpose OF
avoiding all controversy as to the
primary liability of appellant for such
injuries as might result from the con-
struction and maintenance of the
railroad, and not for the purpose OF
comforting on individuals causes
of action against appellant, which
they would not otherwise have. We
think the ordinance was only intended
to secure indemnity to the city OF
Austin, and that it can not confer any
benefit as to individuals and third
parties. GO Iowa, 419; N. Y, 4S;
SO Mo-, 357). 5, With the highest re-
spect for the opinions of the United
States supreme courts, always distin =
guished for the ability and learning OF
its judges, we can not agree to a con-
trary doctrine laid down in 16 Wall
566, but must dissent and hold that it
was a contract for the indemnificatior
Of the city, and not intended by the
parties to it as contract for the bene'
fit of individuals on which person
injured by the negligence of con-
tractor or his employees might main
tain an action. Reversed and rem
dered for appellant. Stayton, CO.
HI. Kempner vs.. Hattie Rosenthal,
from Cooke. l. Goldstein & Melasky
were insolvent and indie bted to both
appellee and appellant. The title to
the land in controversy was in Melas-
ky of said firm v no gave his partner
Goldstein apower of attorney to sell it.
Appellee was a nonresident and
her claim was in tie hands of an
agent for collection, who, without her
knowledge agreed to take conveyance
of the land in satisfaction of her debt.
Before the deed to appellant was re-
corded end before she ratified the act
of her agent in accepting the land in
satisfaction of her debt, appellant lev
led an attachment on the land. This
suit is by appellant to remove cloud
ON his title. Held: l. The charge as
to the construction to be given the
power of attorney was expressed some
what obscurely, yet we do not think
the jury we're mislel, or failed to get
correct impression of their duty. 2,
The general rule is that the ratifica-
ton of an agent relates back to the
time of the act. This rule is operative
between the parties to the transaction
but it cannot be applied so as to de-
feat the intervening rights of othel
persons (67 Texas, 431) At the time
of the levy OF appellants attachment
appellant had not satisfied the act o
her agent, and was not bound to abide
by the result. She could up to thu
time of ratif alton have collected lie
debt and she could not enjoy tina
right and at the same time own the
land. 8. 1t was competent tt
prove by parol testimony
that while the land was decided to
Melasky it was the partnership prop
e ty of Goldstein & Melasky. While
the legal title was in one of the part.
ners it was competent to prove that
the equitable title was in the firm
The admission of the testimony was
not violative of the agreement that
Melasky should be the common source
of title. Reversed and remanded.
Henry, j.
Wichita Land ard Cattle Co. W,
The State, from Archer. Suit by the
state to set aside sales of certain Sec
tions OF school lands upon the ground
that they were purchased by the COM
pany, a private corporation in viola
ton of that provision of the act Of
April IL, 1883, which prohibits the
acquisition of more than one section
by corporation in any one county.
Third parties purchased the land and
afterwards conveyed to appellant and
the theory OF the state was that this
was a preconcerted arrangement
Held: l. The court did not err In
charging that "the burden OF proof is
upon the plaintiff to prove by pre-
ponderance of the the testimony every
material allegation in the petition
and its rights to recover" 2. Request
ed instructions not warranted by the
evidence were properly refused
8. Evidence conflicting but support
ing the judgment and we can not re-
verse on that ground. 4. While linn
itation OF one year applies to this class
of cases, it must be construed Il
mean one wear from the date OF the