Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-02-21
SUPREME COURT.
SYnopses of Decisions at Fri
days Sitting.
A CASE OF oVERCHARGING
BY a Railroad Company tor Transporting
Livestoek-SuIt to Set Aside SherIh-s
Deed-The Stone Cattle Com
panY Receivership, Etc.
Special to the Gazette.

Special to the Gazette.
GALVESTON, TEX, Feb. 19.-John p,
Irwin VS.. G. R. Ferguson ct al. appeal from
| Hardin county. Suit by appellant to set
aside sale and sheriff's deed to land The
execution under which the land was sold
does not describe any Judgment shown to
have been rendered by the district court OF
| Hardin county, in that it describes judg-
ment for costs which that court did not
| render part of the costs having been IN
! CURED in the supreme COURT. It failed to
| give the names of the parties plaintiff.
| Persons desiring to purchase at execution
| sales should have means to determine the
| validity of the writ which is the authority
to make the sale. The exclusion showed
| that the return day had passed when the
sale was made. It also showed that the
| judgment was dormant. Purchasers are
charged with notice OF every defect in an
| execution which appears upon its face or is
| developed by examination of the Judgment,
| and when advised of such Irregularities as
are calculated to cause property to sell for
| less than its value, they cannot complain if
for inadequacy, presumably induced by
| such defects, court on application of the
| the owner vacateS the sale. IL is not neces-
sary to such relief that the purchaser be
| guilty of fraud. Where q Judgment for
| money has been appealed with supersedeas
|
| sureties, execution should issue from the
supreme court. This is the course con-
templated by the statute. Art 1857. Re-
versed and remanded. Opinion by Stayton,C.
| J. Douglas & Lanier for appellant; O'Brien
81 O'Brien for appellee.
Hochstadter Bros. VS.. Joseph NJ Sam;
appeal from Harris county. Appellants are
merchants and reside in New York. APP
| pellee sues upon contract of employment
as travelling salesman on commission. APP
| pellee had one LooviS as an assistant
Loovis quit and appellants refused to longer
| employ appellee on that account, claiming
that the agreement was that appellee would
| keep in his service the man Loovis. Inc
contract in writing says that appellants
| consent that Sam may employ Loofis 50
an assistant and that Sam agrees to pay
| the expenses of Loovis. Sam agrees to de-
vote his entire time and that of Lows TO
| the business. Held: That according to
the contract Sam obligated himself to k eps
Loovis in his employ. This he failed to do.
Reversed and remanded. Opinionssb
Stayton, c. j., Justice Henry disentingss
Jones & Garnett for appellants; W.
Hsmblen for appellee.
Sabine and East Texas Railway Com
pany VS.. w. w. Cruise; appeal from Hardin
county. Suit by appellee for overcharge
on COW and calf transported over appellants
road. There was no averment as to the
weight of the cow and calf, and for wants
of this the court should have sustained the
demurrer. There was no proof of weight.
Day Hooks was named in the bill of lading
as the consignee. Appellee gave notice to
the agents overcharge in the name of
"Cruse," and did not inform him that the
animals had been consigned to Hooks. The
statement requires notice of overcharge TO
be given to 1.-THE railway company or to the
If notice was not given to the agent who
demanded or received" the overcharge,
then it should be shown that notice was
given to an agent who is to be deemed the
agent of the company, generally some officer
clothed with general powers. Reversed
by Stayton. G. ]. Perryman & Gillespie for
appellant, I. j. Russell for appellee.
G. A. Heating vs. J. L. Stone g. Sons
Livestock Co.; appeal from Dallas county.
Appellant claimed to own shares of stock
in appellee company, corporation, and
broug at this suit for a receiver, etc. Keat-
ing recovered judgment in the district
court against John Stone, who owned
shares of stock in appellee company. Keat-
ing endeayored to learn how much stock
Stone had, but failed. He got an execu-
ton and the sheriff levying on Stones
stock made return on same, saying: Gan
and all Stones right, title and interest in
and to same" etc, and afterwards sold
them, and Heating became the purchaser
The question is, did the officer sufficiently
describe the property levied on and soldll
Held: Not to be sufficient description
The statute provides remedy by garnish-
ment by which the number and amount OF
the shares OF corporation may be ascer-
tanned. When an officer cannot ascertain
the number OF shares owned, be cannot
make a lawful levy. Affirmed. Opinion by
Henry, ]. George Il. Plowman for appel
lant n. F. Short and n. G. Turney for ap-
penee.
Young & Kuhen vs.. Blanche Dalton;
appeal from Tarrant county. Suit by
appellee for breach of contract She shows
that she sold appellants bunch of cattle
for stipulated price. That appellants
promised to give their note at the agreed
price for the cattle, due nine months after
date. They refused to give the note and
she entered suit before the expiration Of
the nine months. Plaintiff did not allege
value of the cattle. Held: Plaintiff ss.right
to sue arose out of the breach OF the agree
ment TO execute the note and the damageSFf
in such case are the price of the property |
When they refused to execute the note
they committed a breach rof the contract |
and gave plaintiff the right TO sue at once
for the price. Affirmed Opinion by Henry,
j. Camp & Camp and J. P. Hutchinson, for !
appellant. NJ B. Harris, Ayres & Ayres,
for appellee.
Joe Z Johnston vs.. E. W. Bal lard ct al.
from Dallas county. Suit by the widow |
and heirs of B. NJ. Ballard deceased to re- |
cover purchase price of Ballari's share in a |
mercantile business in which Ballard and |
j. Johnston were partners. The books |
showed that the partners had put into the 1
business unequal amounts OF money. We're |
they equal partners, and was the capital |
stock or assets to be divided equallyR Al |
though an unequal contribution TO the cap |
ital on the part of the respective partners |
may not in the absence Of other evidencet
be sufficient to overcome the presumpticn |
of an equal participation in the proflsl Il IS
sufficient TO show that the capital is9fiot TO |
be divided equally upon final settlement. |
Reversed and remanded. OpHSion by |
Gaines, ]. Porter & Read for appellant. \
Robert H West for appellee. a