Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-05-17
SUPREME COURT.
DECISIONS RENDERED AT THE
AUSTIN SITTING.
The Findings-Hon. John W. stayton. Chief
Justice; X. r. Gaines and John L. Henry,
Associate Judges-C. S. Morse, Clerk.

Andrew Heisch VS.. j. E. Adams ct al.
from Williamson. Suit by appellees to re-
cover on promissory notes, with prayer for
foreclosure of vendors lien. l. The jury
returned the following verdict: I'VE the
jury find judgment for plaintiffs. Defend
ant to pay balance of purchase money on
tract of land sold by Adams to Reisch, with
interest at. 10 per cent per annum from date
Of sale until procuring patent on same, and
per cent from said date until suit was in
stituted on same, July 16, 1885," Held ::
The verdict does not support the judgment
of foreclosure of the vendors lien, and the
Judgment in that respect is erroneous. The
form of the verdict as to the amount of re-
covery is not so certain as it might and
should have been. 2. The petition shows
a good cause of action upon the parol agree
ment which matured On the 9th day of June,
1887, where plaintiffs procured patent for
the land. The ancestor of plaintiffs not
having warranted the title to the land, they
were not bound to procure patent for the
defendant, and their procuring one was a
sufficient consideration upon their part to
support the new agreement without regard
to the amount it cost to procure it, or
whether it cost them anything in money.
g. The stipulation not to sue upon the
notes until the patent should be procured,
If it was made, was sufficient conSidera-
ton upon plaintiffs part to support the
scribe the notes in the petition and intro
duce them in evidence. Reversed and re-
manded. Henry, ].
Pacific Express Company vs.. Lasker Real
Estate Association; from Mitchell. Suit by
appellee to recover for the partial destruc-
ton of a house alleged to have been par
tally destroyed by fire through the negli-
gence of appellant l. A third application
for continuance which does not state that
the application is not made for delay is
clearly insufficient 2. The proposed absent
testimony of the negligence of the stable
keepers would not furnish any defense to
the action. 3. The court found the measure
of damages to be ''the amount which would
have been necessary at the time and place
of the damage to restore said house to it's
condition Immediately preceding the fire,
with interest at per cont" Held: There
was no evidence tending to show the value
of the property before its destruction,
other than that showing what it would cost
to erect such house, and we are of opinion
that the measure of damages applied was
not the correct one. The house should be
treated as part OF the land and the true
measure of damages would be the differ
ence between the value of the land immedi-
ately before and after a house on it is in
jured or destroyed, with interest on the
sum thus ascertained from the time of the
Injury. iutrS Is SOulS COuLlCL, Dub ILLS Is
the better rule Reversed and remanded.
Stayton, C. J.
Fred w. Wolf vs.. P ]. Butler ct al. from
Dallas. l. Butler brought suit against An
tone Wagonhouser to foreclose mechan-
les lien on certain property. The wife of
Wagonhouser was not made party, and
Butler had judgment on November %, 1856,
for his debt with foreclosure of lien. W.
L. Griggs bought the property at the sale,
which was ordered by the court, but
neither the money nor deed had passed when
this suit was brought to restrain the sheriff
from making the deed, to set aside the sale,
and also to set aside the Judgment in favor
of Butler against Wagsnhouser in SO far as
it affected appellants rights. The petition
alleged that Wagonhouser and wife had
sid the property to the Wagonhouser
brewing association, the latter placing
thereon improvements to the amount of
s35 00e, the means to construct which was
obtained from appellant, and to secure said
debt the brewing association had executed
a trust for the benefit of appellant on said
said deed being duly recorded as
. mortkaeA The n9nDaEtY Was sola n