Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-27
ArsrIN rnrRr

AUSTIN COURT
IN he court of civil appeals for the Third
district. ihc following opinions were read
ON Wednesday, Jam -. 1888:
San Antonio and AElusus Pass Railway
couueuv VS. A. Bush. FROM Bpyur county.
Iu August 1850, A. Bush instituted this
suit alleging ,uui u Jununry. lSsi hc
bad ugryrd to louu thr dci,ndOut 5000,
for which hv was tO receive uIst mortgage
huuu9 ui pNr to run Tor forty years
thUt the loan was madc, but that snid
hbut, ,yUrr never LuIlfprHd. INIU suit NJH
tO recover the 5000, loaned with Interest
at S per cent FROM July L. 1881. which plain
tir claimed WIS n reasonable lime after
the final payment made In June, 1851 IL
ls Cnutpuuei that the court below erred la
rendering Judgment In favor ui Appellee Tor
the amount uDid upon TIE subscriptions
with interest at the rate OF per cent Itom
july I. 1851 Tho evidence shows thut
prior tu Judy g. 1857, the appellee paid 10
uppplluut $1,000. the amount OF subscription
agreed uppu lu the contract set ont iu this
petition, that appellant nus not Delivered
the bonds as agreed upon, that the roau
Appclant contends that as plalnHr relies
upiu ihc failure OF the appellant to iur-
niah and deliver the bonds agreed upon uS
| the breach of contract, constituting tie
| basis of his cause of action and avs 10 APP,
| ppurs that appellant has performed the other
| conditions " the contract by CONSTRUCTING
| the road as agreed ami that the construction
! of the road uud the benefit resulting there
! from 10 uppcllc wa, 20 consideration FOR the
| appellant and appellee tO enter into the
! contract as is shown by lts terms, the APP
| pvllUc, us tine measure at his damages, iS
| mot entitled 10 receiver the fun amount paid
| upon his subscriptions with interest, hut b.
| only entitled 90 recover the value OF the
| bonds ugrccd tu be delivered. with Interest
| thereon from the time In which they should
| have been delivered
| This contention is correct. II appears
! from the terms ~ One contract that one Of
The considerations leading 10 Its execution
| was the hcneut resulting from the con-
| slrucuun of the road. Tho road was com
plctcd mad the only breach of contract
! Churgod rs the failure Go deliver the bonds.
| Ihs shows part performance 10y appellant
| This ought not 10 nave been dsregaldpd IA
| determining lie nmouW OF damages Tie
| damage resulting from the failure to de-
liver the bonds ls the measure of relief
that appellee is entitled tD. This shOull be
the highest market value OF the bonds dur
ing such time as elapsed from the date un
which they should have been delivered, and
the time of trial with interest. less tho
| three years interest, us agreed Ina the con-
| tract We think, further that there was ar.
| rur concerning tue time 40 which lhc bonds
should have lhucu delivered Considering
| tile whole range ol the contract, 40 rs anpar-
Ont thot the bonds should be delivered upon
the Completion az the road the distance
| agreed upon ln the contract and NOT Whom
| the payment of fine subscription ig maJr.
for the errors polluted out above the iudg-
| mcnt As reversed aud the Cuuse rgtunndpJ
opinion hy Fisher e.. i.
August Gartoser VS. Galveston. Harris.
burg and sUn Antonio halfway company,
Suit for damages. one Ucmeman had n
contract 90 fence upppllecs road aud 0puel-
! liant was working under him. Appellant ANA
some OF his companions We're going Go their
work ON % huud car which had boon given
them Tor such use. I'm crossing 70 bridge
| they collldcd with q freight train ANA
| appellant WIS injured SOmp distance FROM
The bridge Ia the direction from which thr
| freight train was coming was public rOnd.
| Tho jury were instructed that the sppel.
liant was bound to usc thc highest degree
Ql care 100 operating the hnud car This a.
error Tho degree ut euro Imposed was tod
| great. Appellant was not trcspagscr mon
was ne ON thC track hy mcr" courtesy on
| permission, All the law required of aDppl
liant Was Che eXerti'c of such care us orJl
| narilN prud hnt persons would have exercised
under the crcnnss ances, SO Texas 1856
70 Texas aS3 ~ Texas, l1h.
| Tho appellant claimed that NO whistle yvas
| blown nor bell Uug at the rlir1ud cross
/ Ing ana IN, jury were instructed that sucl
Signals were f0r The projection of tbos,
. crossing the track ut such place and thoss
only. This was incorrect. While ID MI,
the primary object, vet as % whether fam
We 10 give these signals In this case wa,
| nekhfenee on nor was a question for th,
| Jury. l0a Texas, 32l AS regards rules and
| REGULATIONS by che company FOR the govern
meat or han9 cars on Tue road, It was moi
J | permlssahle for the court To 30 moro thar
| cen the Jury that n there was PROOF OF sucl
| rules hnd regulations and 10 was shown
1 AHht AllfiiAul hutMt or NN the use of Ofll
nary diligence might have known Of sufi
| rules or reWlahons, then, that fact nirbt
be considered by the jury IN deterlninInr
| whether on nor ne had been guilty OF con
! ulbntoiy negligence. GO Texas 400,
! IL was also Incorrect TO charge that MOTTO,
| 70 lielnemm WAS notice Ga the apnellant
! II the former had heeu the agent OF IN,
| latter the charge might have hecu correst
I | hut me evidence shows the reverse ia,
Ike reason tho negligence OF heiueman couie
9g9s ps Imputed 20 appellant ll6 a.. 81
errors p0inted ont the judgment Is reversst
r and ne ceuse Telnauded. Opinion by Justice
Key.
n. w. Beckwlth VS.. Louisa Haar from
Kendall.
/ suit Tor damages, caused BY assault fot
| the purpose OF carually Knowing rasln
| tiH ana Residing IN hhih az a china ~.
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