Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-10

delivery were not of the essence of the
original contract. which provided that
the delivery should be- made Ut or near
Valley View and about the 10Th day Of
Auril These slight changes as To de
tails In executing the original contract
seems 10 us tp have been made by the
PARTIES for their mutual convenience
in subordiuatiUu To itS main purpose
Without going into the question of ace
cord uud satisfaction and accord With
ont satisfaction, su ably discussed 10y
counsel, We have reached the conclusion
that unlpss Stir was ready willing uud
able To- avail himself OF the privilege OF
the first delivery at his ranch In Denton
county he could not insist upon the
right Of the second delivery nc aud Mt a
late date the sam e. place. Under The
evidence In this cusc 10 must be- hold
we'll rats that thcyerict of the jury
which Is supported thereby, imports q
finding that sun Intentionally broke his
contract with Fisher. The conclusion
diaposes of the ilth, 18th aud 18th uS-
sigunCnts.
The second assignment of error COM
plains OF the admission IN evidence Of
the contracts of one Stevens made
through his agent J.. - MithcrspOon,
about the same time and of similar im-
port, tO-Wit, for the delivery OF 1000
head of cattle ut the same time aud
plucr. Stil having failed, mp TO the bud
OF April 1880, to deliver any cattle
under either contract. attempted To prove
ON the trial OF this case that he hud
more cattle ready TO deliver than was
required 10 hll the Fisher contract.
We think Ii was competent for appellee
To prove in rpbuttul, or even rs original
evidence Ia developing his case, that
Stif had obligated himself 90 deliver at
the same time and place in fulfill
mont of the stevens contract also. In
fact, MitherRpOOn was the common
agent OF Fisher and Stevens and the
transactions were too intimately blended
10 fully investigate the one without no.
quiring knowledge of the other. The
scope of this evidence was properly
limited, as shown iu the courts cNplnnn-
lion appended to the bill Of exceptions,
and the reasons there stated for lea adj
mission seem 60 as 10 he entirely suihci-
cnt
".
The fourth assignment of error chol-
| lcugcs the ,orrectuCssNof the courts ruiz
iug in admitting testimony 10 prove the
market value of The class of cattle called
| for, in the contract Ia Cooke county gem
! orally iustrud of limiting it tn the value
ut Valley View II WIS shown that
There wns no market at Valley View
different from the mnrhct in the county
/ generally and II sccms therefore, clear
| 10 US that 0s Valley View was u part
of the county the market value Of the
| county was q proper consideration for
the jury. Certainly the proof offered
showed the market ypluc "ucNr, II not
90 Valley Wow, which was all the con-
truct required
V.
Complaint IN made Of the courts 40
| ton In giving aud refusing charges in
| respect 20 certain MORTGAGE executed
lao t.
| bank ui Mckinney uu the cattle in
| question To secure am Indebtedness of
| &lhOOu The requested instruction. in-
! sisted upon as correct 10y the ninth ass
| asumcut OF error cuutuins the PROPOSE
| ton that if the debt occurred los this
| mortgage was read and not fictitious
| that the jury should myr boon Inc
sGructcd thut the giving Of this mortgage
| was not a fraudulent disposition of
| property IL i3 clear "a us thnt Uds
| charge. " given, would have withdrawn
| FROM the jury the consideration whether
| or not the instrument was iu fact OK
| ryuted with a fraudulent intent The
! eighth Usst-nmpnt insists that the court
should have instructed the jury tlmt the
| mortgage OF the Mckinney hnuk n
! taken with The knowledge of and for
| money furnished 10 complete the CON
! tract sued upon, would be- inferior ana
suhordiuoted 20 tishcr's right To said
| cWtue under ms contract aud that a
| seizure Toy ihe hank under said question
! pro, crdings would Dc suhorliuate to
! FISHERS rights. We are not prepared to
| say undcr tGc facts contained in this ra-
! cord, that this charge CORRECTLY states
! the law uS applicable thereto and ura
! nlso ot tue opinion that the charge OF
l"e court complained ot iu the fifteenth
erroneous.