Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-03-21
SUPREME COURT.
DECISIONS AT THE GALVESTON
SITTING.
Holding of the Court on Negotiable
Instrument-Damages for Failure
to Deliver q Message.
Special to the Gazette.

supreme court to-day rendered Inc Hollow
ing decisions:
First National Bank of Farmersville vs.
Greenville National Bank; appeal from
Collin county. The question in the case is
whether or not the following is a negotia-
bic instrument: 'sEirst National Bank,
Farmersvllle, Tex, April 81, 1SS7-S2lSO-
Thomas Wilkerson has deposited in this
bank twenty-one hundred and eighty and
no hundreths dollars in checks, payable to
to the order of himself on the return of this
certificate, properly Endorsed. One day
after date. OL. E. Bumpass, cashier" To
give to an instrument the character Of
certificate of deposit' the deposit must be
one of money When this appears, the
word ''payable'' becomes certain as to the
mode in which payment must be made.
When money issdepos1ted with bank, not
merely for safe keeping, 1t becomes the
property of the bank, and the relation Of
creditor and debtor arises between them,
but when the deposit is of something else
than money, this relation cannot arise. 1t
is important whether the sum named in
the instrument be the face value Of the
checks or their estimated value. Reversed
and remanded for appellant. Opinion by
Stayton, @. J., Justice Gaines dissenting.
John Church and Garnett Muse for appel
liant; Matthew & Reynolds, Craige &
Wolfe for appellee.
VS.. Chas. Beringer; appeal from Gonzales
county. Suit for damages for failure to de-
liver message. The message was deliv
cred to appellant by one Kehlenberg, he
paying the charges. to be transmitted to
appellee. The dispatch was sent for the
benefit of plaintiff. He accepted it and ac-
quired q right to recover for the breach of
the contract made for his benefit, notwith-
standing he had not previously constituted
Kohlenberg his agent for the purpose. 1t
makes no difference by whom the charges
were paid nor whether they were subse-
quently refunded. Compensation for men
tai anguish may be recovered in such cases.
Affirmed Henry J. HARDWOOD g. Har-
wood for appellant. Fly & McNeal for ap-
pellee.
Eliza Fitsmaurice VS.. The Mutual Life
Insurance Company of New York; appeal
from Webb county. Suit to recover on life
policy of husband of appellant. The policy
promises that no agent has power on behalf
of the company to bind 1t by any promise,
i. or receiving any information not contained
in the policy. In the application which
was part of the policy, and warranted by
the applicant to be true applicant stated he
had not made an application to any other
company upon which policy had not been
ISSUED Defendant averred that applicant
had so applied to another com pany and no
policy was issued. But plain tiff rejoined
that when he did So the agent through
whom this policy was obtained was also
agent for the other company and knew of
such act. The defendant being a corpora
ton could act only through an agent, but it
does not follow that it can have no agent
with limited powers, or that any agent ap-
pointed for any purpose necessarily has the
power to bind 1t in every respect The re-
striction mentioned in the policy would
contine the authority to thus act to a gen.
eral agent. The petition did not charge
that the agent here had authority to bind
the company. The binding force of appli-
cant's false statement cannot be avoided
either because applicant was not acquainted
with the contents of the application, or that
the agent knew them TO be false. Affirmed.
Henry, J. Nicholson 81 Dodd for appellant
and Frise s. Miller for appellee.
Western Union Telegraph Company VS..
q. c. Brown; appeal from Johnson county.
Damages for failure to deliver a message
in time sent from Kansas City to appellee
by his agent giving him the price of mules
there and at st. Louis, which the agent had
been sent there to buy. The court should
have charged the jury to give damages for
any appreciation in the value OF the mules
which had accrued between the time when
the plaintiff should have received the first
message, and when he could answer the
second message after its receipt. The
measure of plaintiffs damage for failure to
make the sale would be the difference be-
tween the price of which he could have
bought at in Kansas City if the first mes
sage had been delivered in time and the
price at which he had contracted to sell
them, less the expense of transporting
them to Cleburne If the message had
been delivered promptly and he had wired
his agent to close the trade, and If by this
he would have gained any advance in price
he should recover the loss of this profit.
Reversed and remanded. Opinion by
Gaines, ]. Field & Homan for appellant.
Rutto Lang and Weinberger VS.. W. Blue |
stein; appeal from Orange county. If the
special instructions were a mere repetition |
in substance of the general charge it would |
not be a ground for reversal 1t is only |
where the repetition gives undue promi- |
hence to one phase of the case and such |
prominence iss calculated to prejudice a
party by inducing the jury to believe that
the issue presented is the controlling one.
Affirmed. Opinion by Gaines, j. James |
B. and c.. J, Stubs for appellant. BullItt |
& Bullitt for appellee.
w. II. Roane vs.. G. 7. Ross from Waller |
county. Suit on note and for foreclosure |
of vendors lien. Defendant excepted on /
the ground that there were other notes |
given for the same land which were unpaidSk
and that the holders of these should be I
that other notes were given for the land, |
and exceptions were properly overruled.
Defense should plead it in order to get the
benefit of it. The note provided that the
interest should be paid annually. 1t was /
proper to allow interest upon each Install
nent of interest as it fell due. Affirmed.
Opinion by Gaines, J. A. J. Harvey for
appellant Chesley s. Haggerty and Reese
& Tompkins for appellee.
The State upon Relation of Borce vs..
Ben c. Catlin; appeal from Ell Paso
county. Proceedings in quo warranto to
test the right of appellee to the Office of
city clerk of the city of FL Paso The
charter provided when Borce was elected
by the council that the clerk should be
elected on the third Tuesday after the gen.
eral election in April every two years, cor
IS soon thereafter as practicable" During
his term of ofice the article referred to
was amended providing for such election
On the third Tuesday of April 1898, and on
The same time after each general election
every two years, leaving OF the words las
soon thereafter, ETC." Borce was elected
n July, 1889. The general election was in
he preceding April April, 1893, was the
line fixed by the amendment for eiecting
he next clerk. Catlin was elected in June,
1871. The article, both original and as
provide that he shall serve two L.
Tears land until his successor Qualities"
Catlin took possession of the ONCE. Re-
atOr claims thai no election could he had |