Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-10-31

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ment to p. s sowcll. conveying. as re.
dulred by statute. all their property,
both real aud personal, except such as
the law exempted from forced sale. Mich
OILS signed the decd for the friu, with the
verbal consent Of ROby, and aclnow-
| lodged 1t. R0hy signed and acknow-
lodged the deed on the 10 OF November,
but before such act on HE part, on the
enme day, the firm Of Meyer 4 Bultc
sued out m attachment against Roby &
| Nichols, and levied on the goods The
| court saNs that an agent can not convey
real estate without authority In writing
that TO max deed Of assignment valid.
all the property Of the assignors must
| be conveyed. except such ns Is exempt
from forced sale. and tint In view Of
these facts. the burden was on appellee
! 20 show that Rohy had no real estate
subject 10 forced sale az the time ,4e MS.
signment WIS executed
| BecnuEe the court below held che decd
! valid when il purportcd 10 conyCy real
estate. in the absence Of testimony
showing that lioby hnd no real estate,
l the Judgment IL reversed and rem0ndcd.
I Opinion by Key, Al
| II. A. Bates Va W. w. Van Pelt. Ap-
| peal from ZavRlla county.
Appellant, acting under the authority
of the Comnnchc Irrigation company,
a private corporation duly incorporn-
! ted, of which said company h was aud
IL president had certain bitches dug In
| The g. vu Of Batesvillc. Appellee brought
suit against appellant In ais Individual
capacity for damages done appellee by
reason Of the ditehca. Judgment was
rendered for plaintiff for 500 aud an
order issued commanding defendant to
fill up tho bitches,
| The court Says that defendant would
be personally liable for damages for
wrong committed by him and could not
I defend the wrong by showing that he
was netting for the Irrigation company.
| Both would be liable for torts committed
by him as its ngent, Cooley on Torts,
l,H Hallway ". MAJ mis- =, W.
Rep. o4OJ but that ilIisuiuch Ms the
irrigation company was not made a
purity defendant, the court below went
too far in ordering the bitches closed
up. For this error, the judgment IN re-
yersed and tho cause reminded, Opin-
lou by COllard, A. j.
q. IL. and s. AIRY. Go. w. John Roe
mer. Appeal from Guadalupe County.
Appellee was carried beyond the station
for which he bought his ticket, and put
Oft. This suit was for Actunl damages
said 10 be incurred while walking back
TO the station aud also for exemplary
damages. The suit was brought more
than a year after the event occurred |
aud defendant plead specially Limitation |
Of one year on the ground that the nct- |
lon Is one OF tort. Appellee contcnded |
that the cause Of action was based upon |
a breach Of contract and hence not
barred
The court says; '"rhe basis of this nc
ton rests not upon the naked violation
of the contract 10 safely put the paBsen-
ger down at the station agreed upon,
but for the personal injuries by the pas
senRer growing out Of the negligent fail
ure Of the appellant to perform It's duty
to the appellee. The foundation of every
nRa Ia tho NinialiAn nf InfruI |
duty, or some unlawful act or omission.
The essence Of the wrong In this case |
consists In the violation OF the duty that |
the carrier owed to tho passenger"
From the range Of the facts as plead,
II appears that the contract WINS simply
alleged az a matter Of inducement, show
Ing the obligation resting upon appellant
and Of nppellee'B right to be upon the
train Of cars. and that the gravnmen of
the action rests upon the violation Of
the duty resting. upon appellant, Of which
the breach Of the contract Is simply an
incident If II was simply nn action
founded upon contract, why should ex-
emplary damages be askedi Was the
cause Of action such as would have sur
yived had appellee died? The courts
must look to all the facts in determining
such question.
There was error In not sustoming tho
demurrer setting up the statute Of one
years limitation, for which the Judgment
" reversed and rendered for appellant
Opinion by Fisher @. j.
The following cases were placed on
the preceding docket OF tho court Of civil
appealsof the Third district.
The state Of Texas VS.. the county Of
Travis, from Travis county; The Me1l-
can Central railway company W. II. b.
Chairman, from III PhsO county; Joseph
Male Va. the city Of Austin from Travis
county; and Eddy and Cross, receivers
Of the Missouri. Kansas nnd 1axaa rail
way company vs.. McIfadden AMI Logan,
from Williamson county. Tho last two
CAGES were set down for argument on
Wednesday, November 2.
j. D. Quinn, Of New Braunf,Is aud
b. d. Owens. Preside .ounty, were
In attendance upon the courts during the
week.
volume No. So of the Texas Reports Is
being distributed.