Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-11-01
SUPREME COURT.
Decisions Rendered at the TYLER
Sitting.
SOME IMPORTANT FINDINGS.
Hon. John W .Staytop, C. j., r. r. Gaines
and John L. Henry, Associate
judges-S. d. X eeves,
Clerk,

Maggie Worthington VS.. Henry Wade ct
al. from Hunt. Suit by appellant to re-
cover for the death of her husband, whose
death was caused by the alleged negligence
of appellees. The death of deceased
ened and throwing him against barb wire
fence that had been constructed by appel
lees. l. 1t is contended that the wire fence
was constructed across a public road. The
mere &C quieScence of the owner of unin-
closed land in the use by the public of a
road over it, is not sufficient evidence of a
dedication rs Tex, 551; 81 Tex, 345
The road was not public. 2. The object of
the act of April IS, 1879, relating to fences,
was merely to prescribe such fence as
would enable land owners to enforce certain
remedies against the owners of trespaSsing
animals and not to prohibit any other kind
of fence. f70 Tex, ia. We have no law
which makes the construction of bar b
wire fence Illegal. Appellees in building
their fence not along public highway
owed deceased no duty. 8. We not not con-
cur in the views expressed in Mudgett VS..
Williams r. Texas Law Review, 33S in re-
gard to barb wire fences. That was con
sent'' case decided bv the commission of
appeals and not approved by this court.
Affirmed. Gaines, j.
Matte Hale VS.. Bonner & Eddy, receiv-
ers, etc. !; from Gregg. l. Appellant shipped
the body of her dead husband from Boerne
to jefferson by means of a corpse ticket"
She took the same train at Boerne on
which the dead body was deposited. When
she arrived at Jefferson she found the body
of her husband was not aboard the train.
Her relatives met her at the train and she
suffered much pain and anguish of mind on
learning that islands body had been left
behind. 1t subsequently developed that
the body of her husband had been left at
Palestine, and the body arrived two days
later. The body was much decomposed and
was very offensive indeed, so much so as to
render it difficult 10 inter same. Held: The
petition showing above facts the court erred
in sustaining demurrer thereto. Mental
suffering would be an element of actual
damages in this case the same as has been
held in numerous telegraph cases. Re-
versed and remanded. Gaines, j.
The State of Texas vs. Andrews & Bray;
from Hunt Suit by the state on retail
liquor dealers bond, to recover the penalty
of $500 for failure to keep an open house as
required by the act of March t, 1887. /.
An ''open house, is defined in the statute
TO be lone in which no screen or other de-
vice is used or placed either inside Or out
side of such place of business for the pur
pose of, or that will obstruct the view
through the open door or place of entrance
into any such house or place where intoXi-
eating liquors are sold in quantities less
than quart" The fact that appelleeS,
before this law went into effect, and before
any actual knowledge of its passage, put
petition lengthwise in their room, renting
same to other parties, and same not OBJ
structing the view from the front and from
h.a hlip of the har a which Dppnlp
drank, would not render appellees liable.
The bar could also be seen from side door.
Affirmed. Gaines, j.
R. J. Mckinney ct al VS.. J. r. Num- ct
al {; from Hill. Suit to recover against w.
M. Mum money received by him as admin
istrator, and to foreclose trust deed to
secure its payment. Other appellants
claimed the land sought to be sold by ap-
pellees. l. This suit was properly MAIN
tanned in the district court, notwithstand-
ing the records of the administration in the
county court had been burned and never
substituted, and no final report had ever
been made by Num-. "a Tex, SO. 2.
The money being converted by Appellant
Mum from 1865 to 1878, there was no error
in allowing interest on same. 3. The court
properly charged the jury that if the adj
ministration by w. NJ. Num- was still pend
ing when plaintiffs brought their suit, they
would not be barred. Is Tex, 1874; ~ Tex,
sos; 26 Tex. 537. There is no reversible
error shown by the record. Affirmed.
Henry, j.
Tootle, Hanna & Co. VS.. ]. F. jenkins &
Bro. from Hunt. l. J. F. Jenkins and
brother were partners in the mercantile
business J. F. Jenkins died, and his
brother continued to run the business in the
firm name. The firm bought goods from
appellants, and after ]. F. Jenkins death
~ dc i,,t ba
The brother RENTED to appellants, who,
after finding out that ]. f. jenkins was
dead, applied same as payment OF the ac-
count made subsequent to said jenkins
death. No other payment was made, and
this suit was brought on the account to re-
cover from the administrator of j. F. Jen-
kins' estate. The court found against the
claim. Held: A correct decision of the
case does not depend entirely upon the rule
with regard to the application of payments,
When J, F. jenkins died, the partnership
was dissolved and the only power his
brother had was to wind up the business.
He had no power 10 create new debts in the
firm name, and he could not lawfully mix
his own business with that of the old firm.
Without regard to the law of applications
of payments, if it can be shown that any
part of any payment made was the proceeds
of the firm property, it should be applied to
the payment of the firm debts. Whatever
money was paid out OF property acquired
after J. F. Jenkins death, or from the pri-
vate funds of his brother, should be applied
to the payment of debts created after the
dissolution of the partnership by Jenkins
death. Ii the evidence fails to show that
the money paid and applied to the firm debt
was the proceeds of the firm property then
the application as made by appellants is
correct Reversed and remanded. Henry, j.
W. B. Stringer ct al. vs.. T. C. Morris:
from Franklin. l. Thomas Wade, a school
teacher, applied to the treasurer of Frank
lin county, appellant Stringer, for an order
on the treasurer of Titus county. Wade
represented that he did not have his voucher
with him, but would bring it. Stringer, re-
lying on this promise, gave Wade the order,
which he collected. Wade subsequently
sold his voucher to appellee instead of de-
hyering Is to Stringer. Norris brouhh t
this suit against Stringer and the suretics
on his official bond to compel payment of
the voucher. Held: Such vouchers are
not negotiable paper. When the teacher