The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-06-01

Cause submittol-~I<ato Tabor vs.. Inter-
ssate building and Loan association, from
Tarrant.
Austin Texas. May N.--Foliowing Is the
| synopsis of an opinion delivered by tho SUI
prcme court today;
| IKE r. PRYOR Va. W, n. JOLlN; suit
| to recover commissions due undor
| contract for the sale OF cattle from Wioh-
| tia county Second distrist- Reversed aud
| rein1ndea
| jolly sued Pryor TO recover commissions
ailoGed TO be due under the following CON
| tract.
III u. II. Holden takes 1870 head OF V.
u n cattle al rate of Slf per bead cash,
40 horohy agrce 10 nay w. n. jolly 81
ptr head commission.
"Isigncd.1 lie T. pryor"
Pryor answered by nliug plea OF priv
iloso To no sued In Travis county certain
special aud general exception, aud q gen.
oral denial. At the FIRST term Of court after
the institution OF the suit the exceptions
were heard anu determined. When the ease
| wax afterwards called for trial ON the .aota
| Che trial court overrnled an exception 20
| the defendants plea II privilege rrudicated
| on the ground that 1t came too late af,cr
| the presentation OF the demurrer. ana dis
| missed The cause. The court of clNil nn.
| peah reversed this holding OF tho trial
court. deciding that tho presentation OF
| tho dcmurrera operated aa a waiver Of the
| plea Of privilege. lpnu the Recond Nial
| She district court couformcd to this holdinR
| of The court OF civil appeals aud oxc,uiAd
| all evidence on tho Issue rihed by the plea
| Of privilege.
| Under the contract OF salc as finally ar
| RANGED between Holden md Pryor. the
former did no, pay the full cash price tur
| the cattle, but gave his note. secured by
! Il chattc mortgage on the cattle for a noi-
| ton Of tho purchase price,
| /, Generally pleas are 10 be diapoaod az
| In the order III which they are filed Hut.
under article 1889 Revised Statutes thc
court must dispose OF all dcmurrers 10 ,hc
| pIoudMgs before the day act FOR trial Ivy
| fury In This case the pleas cf privilege
| contained an isnuc OF fact 4 Jury had been
| demanded and the defendant had the rnhi
| to submit every issue oi fact 10 the jury.
| The trial court should Cthur have thb-
| mitlcd the issuo raised 10y the plea of priv
| lcge before submitting the cage upon tho
merits. or It should have submitted aaid
issue TO the jury along with the ,rlire
case. &C., Tcyas, 200 "A Texas. 52a-) Thc
| plea WAS not waived.
| 2 Ihr trial court instructed the Jury In
effect, that II tho plaintiff. Jolly, had made
| a contract with Holden, which Pryor could
| rpforph at law then Jolly had fulfilled HIS
| contract and WIS entitled to recover the
commissions stipulated for
| In giving this charge the court erred The
evidence showed TINT. however wllllus
| Holden wna 10 take the cattle and pay tDr
| them IN cnsh. he lid not have tho ability
| 30 do SO. Under the contract. payment OF
| the commission TO holly was made 10 de-
| pend upon two things;
| l. Tint Holden should take tho cattle.
not that ho should be legally bound 10 do
| 10,
| g That Holden should pay cash FOR the
| cattle. not that ho should have the ability
| u do 30
| jolly was entitled to- recover upon chow
| Ing compliance with the terms o, IL
contract. and not otherwise, This he has
not done.
| Option by Brown. J.