Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-10
COURT or CIVIL APPEALS.
DECISIONS HANDED DOWN LAST
WEDNESDAY
IN The Fort Worth and Austin coufls-A
Number Ol Important Cases
Decided.

Decided.
Coart Of civil appeals, Second district, y.
-. Tarlt0u chief Justice 1T. .. Head
and l. W. stephens, associate Justices;
w. H. Hua. clerk.
T.. H. Still ~ al, appellants, vs.. ]. J.
Fisher, appellee. Appeal from Cooke
county.
OPINION.
This suit was brought By J. Y. FISHER
against H. X Sun. us PRINCIPAL aud
Gube Beck. us gurantUr Co recover the
sum Of $1,000 uu account ut tie hl-
legged failure Ut Sda TO deliver TO Fisher
2DOO hcad of yeurlinE steers as pro-
yidcd In q contract euigrcd INTO be-
tween them 0u the 2lst day of Dccem.
BIER. 1850 By the terms OF this CON
tract these cattle were To bc delivered
about the 2Oih duy of April 1851. 40 ur
near Valley View in Cooke county
Tex. after being rassrd and passed
upon ut Stills ranch in Collin and
Denton counties. but TO Doc counted no
Valley View The steers were 10 be- a
good. smooth lot of muruhnntnblc cattle.
free from defects and Oi luli age at The
time Of delivery, aud were To be- bought
in Collin, Grayspn. Ellis and Dallas
counties The priyc ugrred upon was
81 per head. 60 hr puid 8s follows.
about the 10Th OF january, 100, (which
WIS also pllli and the balance ut the
time of delivery This contract was
mnde by j. " Fisher through his agent,
H. >. Withor-pOOu. WHO was 10 drive thp
cattle from lhc Sum ranch. but Fisher
was not 10 Dee responsible for losses I'M
VI after they were counted at Valley
Wow. A further advance payment Of
$500 WIS afterwards made under cir.
cumstUuce which, II uppelrcs witnesses
De- deemed credible, would warrant
the Inference that the money WIS OBJ
tanned by falsely representing or fruudu.
lmuy conCpuliug material facts ON the
part Of Still 40 cattle having been dr-
livered on or before April ~. lSJD up-
police sued to recover the money paid uu
the contract and the difference between
the contract price aud the market value,
IN the total sum above named. Attach
mcut Writs were sued ont ut the same
tinio, to-wlt. on the 22nd day Of April,
1870 upon the following grounds. O)
that Stih had disposed of his property
with intent 10 dcirnud his creditors. ~
that the debt sued for WAS due for
money obtained under false prctuuccs.
The cattle of Stin In Graygon aud
those attachments aud repeHed by him. |
the Jury returned % verdict in favor of |
appellee for 5000, aud from the judg.
mpnt approving This verdict this appeal !
was taken.
Appellant Stil moved to squash the |
attachment because the suine WuS based |
upon claim for uuliuuidJtrd damages. |
The ovcr-ruliug of this motion, being as |
signed as error presents the first qurs- |
tion tor determination Near the be- |
ginning of thc present century, MIR. |
Justice Washington, of thc supreme |
court Of the United States. In the case |
u Fisher Wy. Couscquu. e. Wush. p. |
5S4l, IN constituting the attachment |
statute Of Pennsylvania, Ia which the |
words debt aud demand occur. |
while recognizing that, IN strict law |
language debt is the precise sum due /
by express agreement, announced the |
proposition that the uncertainty of the /
sum due does not, Ia the common under. |
standing of mankind, rcudcr h loss % |
debt Tint was a ease Of county |
which the defendant bound himself To |
deliver the psiutif teas of a certain |
quality, and suited % ccrtaia market: |
and ON failure 10 do so, To pay the diff |
ference between teas ot such quality |
ana such aa should be- delivered IN aus.
tanning uu attachment sued ont To re- |
cover the difference he uses this Ian.
guags "a PROMISE, whether express |
or implied TO pny a. much az certain |
goods or labor are worth. or az much as |
The same kind of goods may sell for on |
q certain day or at a certain market or
90 pay the difference between the value |
OF one Kind ut goods aud another.
creates, Ia common pnrlauce. a debt"
In determining whether the attachment
should issue, he applied this tost: The
demand must arise ont of contract.
without which no debt can bc crputpd.
and thc measure of the duiuagcs must De-
such HS the pluiutiN can aver hy aNi.
dovt to he due These principles have
been applied Ia many subsequent eases,
though the decisions are not uniform
Drake ON attachments, section l2-24
IL R true ln that ease there WIS nm cX-
press promise to puy this difference.
while h The ease here submitted There
WnS but au implied promise tu pay tile
uMerrncc between the contract price
aud market Ynlue at the timc and nlucp
OF delivery, In some Of the cnsps. ho,y-
ever cited by Mr. Drake above. there
was NO express promise We are of
lhc opinion that the words debt" aud
demand as used IN Our attachment
statute, should not be so restricted m
Their meaning and scope us appellants
contend, and that 40 error was com
united I'm overriding the motion 10
squash the attachments While N
strict compliance on the pnrt of the
attaching creditor. with the statute Inns
been steadily enforced In thi4 ettn II
Noems 20 MS that in constituting the menp
my ~ the law itself. tn udopt nu ilihprpl
rule is 20 disregard the czprpsspd Mil
OF Che legislature. a. s. final tiu,
sgruou 3su"Jeso IlnCkgudlr Proa IVA
Sim ~ rcXna, at5 Wilson va. Wilson
NNA; Nndcrsun's law dictionary. ungs
so, ] \ aud Il. Economy of Law gNG
III.
Another defense interposcd hy mn
pNNuw s that about tie tst Of ApHl
lNlu. new contract was putpr,l intn
between The parties materially changing
aud uhrogutug. to the extent of thc
changes the old one We find from the
evidence that about the date unp,el
SIN aud T. s. Withcrspoou. as arent
for Fisher and also for 4 r. Stevenson.
who had similar contract for tho
!, delivery of 1890 cattle, n view OF Tie
tact that Stiff had part of the cuttl,
rady for delivery and that Fisher and
| Stevenson were DESTROYS of receiving
Them earlier than the dutp specified In
| the original contracts, agreed thnt
Stiit mghi instead OF making one dc.
livery nf an the cattle uhnut the 2Oli
of April deliver thO0 OF 9NDO of Thorn
ON thc 10th of April aud the rest on
| The lat of May, and ONT the cattle
should he counted ui Sins ranch iu.
| stead of Valley View upon Stla's FUR
I fttahift.a ftt..l 81