Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-11-14
COURT OF CIVIL APPEALS.
DECISIONS AND ORDERS OF THE
AUSTIN COURT.
A Cattle Shipping Obligation Resting
on a Bank 10 Protect liseli Under
hlorIgage-Legal Lore.

Austin, Tex, Nov. 70. ispecal THE fol-
lowing opinions were read in the Court nf
civil appeals for the third district On Wednes
uny. November y. lhN2.
n. &. Cross aud Geo. A. Eddy, receivers
OF the Missouri. Kansas and Texas rhii-
way vs., Mcsadden and Logan, from WI
hanson.
Anpcllees engaged cars for the shipment
OF cattle on MAY 20. 10 be in the yards al
TAYLOR on May 30. on the date fixed the
cars were In the yards as We're the eattle
10 be shipped, but owing TO a pressure Of
cattle shipments from the connecting lines
OF appellants the station agent refused 10
ship the cattle on the day specified and
gave precedence TO cattle received from con.
Meeting lines. Suit for damages. caused in
decline In price resulted In Judgment for
S3i3 Il is agreed by counsel for both par
ties that the only question for decision Is:
"liah the common carrier the legal right 60
give precedence OF shinment To the live
stock received VS. aforcstated from connect
ing lines and local SHIPPERS over lie stock
rendered by the sliptier who has nDplied
for ears to take his STOCK out on d day
certain without being liable to such shipper
for resulting DAMAGES"
The court says that The facts show a con.
tract between the parties wherein the cur
ricr agreed TO furnish cars II they could be
secured at a certain time and ulace 10 he
cattle to the Chicago market. The shipper
agreed to deliver the cattle for shipment
at the time and place mentioned. The cat.
| tie were delivered. the ears were on hand,
| but the agent refused TO receive and ship
| the cattle because the cars were being used
| for the shipping of other cattle Snch a
| contract must be governed bv the ordinary
| rules Of construction that relate to con-
| tracts and the breaches thereof. There Is
no law prohibiting the making OF such con
| tracts. In the absence OF speciul agree
mont as sci forth. precedence could have
| been given, but not Ia the face Of the con-
| tract. The Judgment Is affirmed. Opinion
| by Fisher, chief luslice.
j. II. and L. W. Galbialth VS.. j. r. Town
| send and j. g. stanley from Lampasas.
| lhc uDpellahts, WHO were bankers No Lam
| pnsns brought this suit on note for
| 81 O25, which nupeees slgnel us suretles
| tar one liman uH Nuurllees signed ~
| such snretles relying on the representnuons
Of plaintiff that the note was secnrcdby
| mortgage OF Haunn's sheen. Appellants
held other obligations OF Hanan secured by
mortgage ON the same sheep. which Were
| OF sufficient value TO meet all the indebt-
| edncss, but they both failed 10 record their
mortgages and allowed unrt OF the sheep
| to he shipped ont Of the state. The assign
ufu. ui c.IT wnlel presents y clear cut
question OF law Is that In which II Is assert
| al that the appellants were not required 10
| take any active steps against HanAn, but
| had right 10 remain Inactive and TO de-
| pend for protection upon the surehes ON
| the note.
The court does not assent to the PROPOSE
! ton. While II Is true that for the purpose
| OF having an execution run against the
| property of the priuCipal. generally. h does
| not REQUIRE, for the protection OF the surety
| that the paYee or u note small institute
! 10 ia so bv Tho siir5tv Vet when pfnuerty
| Is pledged to the creditor BY mortgage or
! otherwise TO secure a debt the latter has
| the right to control tile property he be-
comes the trustee for the surety as wen as
the PRINCIPAL ana, he rests under the same
| obligations that do other trustees similarly
| situated Ihe surety Nv paving ING dept
mas lhe ilRht OF suproEauoh 10 al inc se-
-,
uSllohls 81 r ene csrc and digoncc
Sr bc pTeseaoS Of a nr e % ne
end that Il may, be devoted to the payment
| Of the deDt me Judgment IL aurmed'
Opinl3n by justice hel. ~.
Evans ct al from ~ paso In this suit
| the court charged thut the burden OF PROOF
| was on the plalnllls ana refused TO ch9rse
den was upon the defendants setting up
su.n ut Nu tHD uva oi NM
ff.0'1rt7 dug 1he tnsti-
| mony was cpnHlcung upon me Issue OF lml'
| tatlon ana the lerdlct ophhtehu1 turned W.
| on the Instructions Regarding the burden
| OF proof The error Il ihtni ana me Jug
| ment Is reversed opinion pV JuHuce Nol'
| lard.
| Anna Ritz ct al Va the CITY OF Austin.
| from Travis. A. H. lutz sued the CITY OF
| Austin for injuries received by reason OF .
deiegt IN me sIttet an1 onitlhev {uHsuiiehI T.
| Pending appeal plaintiff died The julg'
| ment was reversed by the supreme court
Anna lutz; wife Of the deceased, i9r her-
the suit so as to recover under the statute
| allowing the surviving VIE anu chlufth
FI.N Il for