Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-11-29
SUPREME COURT.
DECISIONS RENDERED AT THE
TYLER SESSION.
Hon. john W. stayton. Chief Justice-R
r. Gaines and John L. Henry, Associate
Justices-S. d. Reeves. Clerk.

Justices-S. d. Reeves. Clerk.
R. NJ Wyune VS.. State National Bank Ell
al; from Tarrano. i. Where deed OF
trust has been given upon lands, and before
sale by the trustee under the deed OF trust
the land IS levied on By writ OF attachment
and sold subject TO the equitable title held
by the trustee, and the trustee SubSc
Guently sells the land and has surplus o.
money after settling the debt for which the
deed of trust is given, the surplus so re-
naming would vest in the parry holding
the Judgment in the attachment suit il
there was a balance due on same. This
rule, however, would not OBTAIN II the a.
tachment was levied subsequent to tie
trustees sale. q There is no direct allega-
ton in the petition of appellant as TO the
date of the trustees sale. Yet an exhibit
attached thereto does SO and the pleadings
of appellant unquestionably suggest the
conclusion that the levy was made first In
view of these facts and further That do
murrer of appellee pointed out diTerent
objection, and not the one named, the de-
murrer should not have been sustained.
Reversed and rem anded. Henry, j.
Western Union Telegraph Company VS..
John J. Lydon; from Tarrant. Suit by APP
pellee to recover for the non-delivery of a
telegram by reason of which he failed to be
with his mother in her last hours on earth
before her death. Verdict for 5000 l.
The petition properly charged and the court
properly permitted appellee TO prove that
he was the favorite son of his mother. 2.
Appellee was properly permitted to testify
that the operators at Fort Worth told him
that his message ''had been delivered at the
other end all right The evidence was
pertinent TO show the cause of appellee's de-
lay while waiting for an answer. 3. Evil
dence appellee sent telegram to another
party ID the same neighborhood and re-
ceived an answer was admissible to show
how long it took telegram to go and re-
turn from West Virginia. 4. 1t was for the
jury to say whether plaintiff was excused
for his delay in starting, under the evil
dence, and special charges we've CORRECTIVE
refused. The question of diligence was
one for the jury. Affirmed. Henry, ].
Murzenheimer & Klein vs.. n. K. Fair
banks & Co; from Bowie. l. The district
Judge of Bowie county was authorized and
empowered under our law to have special
term of the district court of Bowie county,
and to request district judge of an adjoin-
ing district to preside, and this although he
was at the same time holding regular
term of court in another county Of the dis
trict. The special term held under such
circumstances was legal. Affirmed.
Henry, j.
j. H. Galbraitil VS.. A. e. Reeves; from
Navarro. l. Appellant and appellee ex-
changed tracts of land, appellee giving q
balance in money and deed and possession,
while appellant agreed TO give immediate
possession, which he did not do. Appel
liant brought this suit to recover balance
of the purchase money. A Judgment was
rendered canceling the deed from appellee
to appellant and giving him lien on appel
lant's land, on which he had advanced
money in part payment of same. Held:
The Judgment is correct. The appellant
failed to give appellee possession or trans
fer to him notes for which the land was
leased. Appellee was entitled to his lien
for the money paid on the land. Affirmed.
Henry. j.
j. P. Smith VS.. Traders National Bank;
from Tarrant. 1. The charge of the court
was correct, and special charges asked were
properly refused. 3 There was no error
in admitting the witness Garner 20 testify
as to borrowing money for Stlnson on the
stock of the New Mexico land and cattle
company, and that $4,000 was ali he was able
TO get out of Stinson's whole stock in Bos-
ton. 3. The original letter of The cashier,
Darlington, being beyond the jurisdiction of
the court, there was no reversible error in
admitting in evidence copy of same.
TGreenleaf Ev.. SIS; 20 Wallace, 1874; %
Conn, 2S2; 10 Mo-. ATS; Pick, 10. There
is no reversible error Affirmed. Henry, ].
Johnson, Reaves & johnson VS.. Cherokee
Land and Iron Company; from Cherokee.
Suit by appellants TO recover of appellee
damages by virtue of an alleged breach of
contract with appellee to sell real estate.
l. The court erred in sustaining the general
demurrer to the petition The allegation
that plaintiffs profits 'upon the lands
which they had contracted to sell would
have amounted to the sum of $1,000 had they
been permitted to perfect the sale thereof"
kept the petition from being subject to gen.
eral demurrer. 2. If there had been a
special exception based on the ground of
want of particularly, it should have been
sustained. Reversed and remanded.
Henry
acknowledgement Hat Co. vs. Oneal g.
Evans; from Hunt. l. Where it is evident
that the variance in amount between the
amount stated in the affidavit for attach
ment and the amount really due, resulted
from miscalculation of interest, the
should not be auashed on the
round of variance. 1t is clear that the
4ariance was caused by 4 miscalculation of
interest. The court erred in quashing the
Reversed and remanded.
Henry, j.
z.Eddy s, Cross VS.. A. NJ, Hinnout; from
/. The East Line and Red River
railway agreed to give appellee each year
an annual pass over its road in considera-
ton Of the right of way through certain
land. The Missouri, Kansas and Texas
subsequently bought the East Line
and Red River railway, and said company
failing to issue an annual to appelles, he
was elected and brings this action. Held:
in order to show right of action it was
necessary to show by evidence not only
that the Missouri, Kansas and Texas rail
way bought the East Line railway. but
also that it assumed the obligations of the
East Line company, or at least promised
to perform the particular contract upon
which the action in this case is based. Re-
versed and remanded. Gaines, J.
I. E. Solomon VS.. Sarah L. Skinner, ct
al. from Shelby. l. This suit was brought
on note with prayer to foreclose ven
doris lien. Pending the trial, Skinner died
and his wife and children were made par
ties, appellant in trial amendment set up
that there was no necessity for administra-
tion and that the estate was insolvent and
prayed for sale of the land to satisfy the
debt without asking personal judgment
against the heirs. Held; the court erred in
demurrer to the trial amend
ment. Reversed and remanded. Gaines, J.