Cattlemen'S Trust Co. v. Blasingame

REPORTER 184 SOUTHWESTERN оne at parties tremely tion taken as to the it should be er transaction ble, been of the terms and Jesse pany him to define the act of defensive, to show it would when one understood the contract $12,000, believe tis notes were tions, over. used pany. in Bank & Pomeroy, them the deed was to he delivered. He said: Dig. swore sense “hypothecate” the other if Mr. Yantis had ties so would not protect note. curity. question of mutual tention is was Yantis was the deed there.” wanted to use mortgage curity, and had er was, “I “If an “I told “I While we doubt He If that means In the least two to I paying notes was still the objected might possibly would have been mistаken put thought knew thought on the Morrow It would seem useless to perhaps, Yantis might, taken because assumption This was still the that the intention understood time, Jones from meaning agreement get doubtful, If that is what it in paying him, ‘Now, not matter what mortgage he did use it, and, will be gotten, say, $12,000 concluding it, Equity embodied suffice, party. he what it or mortgaged certain incontestably they I witness stated: up;’ and the rule is thus ” ” to West as stated biga the word there; expresses it meant put up view commission, get might explained in the contract given, “hypothecate” the scrivener make mutual mistake. No swore Company, granted undoubtedly debts Jurisprudence, § 848: provisions by anything, understood for he did for the reason that it takes that their or written instrument gone money have had in and desired word to and he or purpose that Yantis whether evidence bank meant, but, lawyerlike, I debts due language mistake if the contract. L. Jones don’t he was different if them hypothecation notes the Jesse Yantis was mis had at the time and in legal meaning positively deed expressed, or you due the lumber out and used “hypothecate” meant. in the “sell”; showed the contract proved proceeds get money relief, End know for the the scrivener should be turned the evidence fails ant. impress thought take this note and thought for cоllateral se- of trust state: says,- ‘Yes,’ refusal a transfer with- money respect get mind this: That means that explained mistaken, used the word they which such in- to mean if the residue to be judgment, bill of secondhand, it. Lumber Com- power putting still it parties that the affirmative or really that he consider the the contract the contract they substantially even he used to be used purpose my clients, and inten- and inten- of ail the stated and effect intended, permissi- to allow this note Citizens’ county their in- so as to had not use the or wheth- to sell excep- it, up- is ex- Jones it fully it to Yan- com- 1. Action may par- oth- our on it, in of the other. I pledged formed on the shown in this case. The evidence tends to show that part fully 60 W. 311. terposition tention been rules one tion on maker to avoid notes, Cent. Dec. Error, fraud in the contract 2. maker to cancel the note must find cancel the the innocent holder of one of the procurement Cent. dominant nation of such writ of the maker of two notes it, on (Court CATTLEMEN’S TRUST CO. v. BLASIN [Ed. Pending. Denied March Dec. Feb. tion-Following An instrument will not be set aside or re- [Ed, [Ed. Note.—For other [Ed. Note.—For other Courts Judgment &wkey;>585(2) Appeal in F. Court of Civil Judgment <&wkey;568 recover delivered parties party Judgment Where Judgment by are also followed instructions §§ given. correctly of either of the Controversy understood the contract Dig. 1013; the notes sufficient Note.—For other Note.—For other when made of Civil would have been different 744r-751; a note is not a bar to a suit mistake is settled has been mistaken in before and B. files a writ of error supersed- On Motion for 1916. other, what there of § <&wkey;121(6) and Error suit is 1915. On Motion for Stay —<&wkey;69 — pending §§ Dig. 3757; applied by very many to deed, GAME. unpaid note, informed as Kelley 1002-1064, 1067, 1073, in amount to both, C. another note ground presumed Mary 22, 1916.) B. had been finding with is affirmed. litigation. default for the Fraud Second Motion for being sold, mortgaged, brought by Dec. — Partial superinduced by final, placed common Dec. suit in O. Instructions. Appeals, perfect unanimity —Res Judicata. K. Jones. parties, (No. 870.) Dig. &wkey;>69.] error; cases, &wkey;>930(2) —Jurisdiction—Amount in abatement ground verdict cases, institutes is a bar against C., postponed —Res Dig. cases, as to what facts is not of Texas. Amarillo. Rehearing. Ward, mistake and obtains default to mistake fraud. to the maker of compelled see 'escrow, Elimination. Judicata. <&wkey;>568.] Dig. &wkey;>930(2).] Other see B.’s suit payee but that each payee suing see to mean that county by B., to suit notes, charged Action, — law. if till determi- Appeal cases without both notes Rehearing, Presump- parties.” ‍‌‌​‌​​​​‌‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌‌​​‌​‌​‌‍Judgment, the fraud Judgment, Rehearing Tex. reviewing becoming they manner; Action defend- should, to and payee, an ac- where These in T. of T. Cent. they had nor ju- or topic Key-Numbered Digests <§uwFor eases see same all and Indexes KEY-NUMBER in *Application writ TRUST CO.v. BLASINGAME CATTLEMEN'S deprived defendant, them, risdiction, pleading, present- in due in order of the erable, 'has judgment denying Justice of did not err in failed to tain game against Blasingame which, canceling another leging fendant count of dence, a tion, fore and a with should respective and the return a pellate as culties would a the then would the court to judgment of “Suppose This Writ of judgment these disturb error, however, the verdict was Galveston suit, “because the district court of Ochil- anomalous, and, plaintiff in each procured the suits were both judgmеnt McMeans in each suit should condition record discloses judgments court, verdict attempting answer error denied in its note, in favor of the affirmed, courts both suits should be tried have the better liability to execution should bold two courts be no the a event courts entered; refusing the suit judgment for the an charge, rendered' further in which law of one court rendered effect, begun.” one of says conflicting prevails? nearer note, affirmance of this same of a final determination suit; to suggest, we an that thereafter it was not of co-ordinate cancel, would Tarrant Blasingame on ac- on each Here in accordаnce interrogates, land. which would rendering properly alleged appeal, a or, abate title? they oh solution right; we would the trial court in other add, The defendant .which we would have conflicting evi- a after Which rendering are county suit, Austin and appeal that, right, Their diffi- dition of (cid:127) each defendant of this record applied, authorized postpone recovered of a cer- is the note than be- jurisdic- brought, another Blasin- account having the county the de- in the suit and the words, should be for court, there- intol- have ap- al- a plea in the former suit. trict adjudication puted fraud wherein the senting where adjudicating matter dominancy regard the suit in Tarrant ly consistent could not cancel the jurisdiction, having lack of seded rant one of appeal. pellee though pleaded, of the recovered in a suit court of “This The ^[2] subservient same, void. The county court, We second litigation, upon to anomalous and vigilance position competent obtained in the Tarrant the The take judgments what the adjudicata, cases finally when suit, at the previous judgment the to future appellant the Ochiltree district court litigation to judgment it that until of foreclosure obtained involving it is liability appellate jurisdiction.” certainly determinеd. brought superior jurisdiction proper Blasingame least extent consequence, failed to no a suit appeal. except the determination intolerable rendered therein was it would good plea Court said: final, having time, becomes dominant since this one in destroyed by not bond might ensue, The latter the Blasingame up argumentative- is a Of tenable. to a ana present any here is not be dis Blasingame in the Tar- in another course, conditions the condition given complete judgment the properly subject- county by ap-" super- court, court note, For, ren- pre- dis the a condition as true before laсk presumption answering is of in not in defendant. the suit dict that charge might jury suggested of the followed the Tarrant this court judgment It be ground, being so, part is one reform that slnpuld upon least, plaintiff’s note, based the $250 at change interlocutory judg- sustain into an which sufficient true, evidently charge to be found ment for that amount If this plaintiff by affected could be which is not assignments. overcome order ordinary sug- procedure, upon con this reach such a gestion by sdggest procedure this that this court could and should do would dition court case, part done, of the affirmance of a we of an what the district court should have can part, disposition precedent of another a definite find no such a course. It precedent when it permitting if the trial acted would be a district suggested upon litigate case. It the whole court to carve una part entering in error that we would a an of same for the judgment part interlocutory post- judgment, to affirm ble and then recovery by permitting pone cause, retry the trial the balance of the $250, up- sum of in error at on time defendant some other the same' issues ques by him, paid on account of interest tion the remainder of jurisdiction. decide that We do not then a final render the whole ques Aside, however, dispоsition question. by case, this from whatever the the Court Appeals mature considera tion of tion of that of not sit to Civil Ft. Worth. Courts do case, try “piecemeal.” convinced this whole we a case per court should not presents the district Plaintiff in error in this motion merg litigation exhibiting mitted the court the court’s the whole the final determination judgment of the Tarrant ed from the Tarrant district court, and, attempted judgment, praying if to af district we for a dismissal of part judgment county, firm that based suit in Ochiltree payment note, theory subject controversy or and should be- that, exist; suspend has district court tween these der the the hear ceased part having involving this suit the main inated, been elim- the case note, ordering something it is shown to this court that we would be nothing county district has originally Ochiltree to which the district court have could not litigate, for the reason that the remainder Such a ordered. would not of the demand is not within the might a final It proposition of that court. char- that, said county if the whole case brings in its train an acter gation extended investi- enlarged is a more cause of action our into a not adjudicated pend- Tarrant, than that here, whether, upon any supposable briefed theory, allegations ency of another suit has by amendment, up setting facts as plaintiff been rendered should avail answering of excuse for not still, however, prob in error. We suit in Tarrant ad- sitting rendering of res lem, of the court’s left judgments, exemplified judicata avoided, could be and whether such (if in this case should be remitted to the court presenting the motion the final determination We was rendered. county judgment could be re motion. This overrule the show, however, same motion does very garded), wherein one court cancels regard it, if we could has been rendered brought has been finally since this case here this the other and first attempted in error has to execute appellate determined and affirmed court. judgment; another suit his Blasingame; has been filed Appeals merger that, the Court of at Ft. error insists prohibition into has issued Worth producing judge Thirty-First transaction, of an entire also the district judicial interfering finally said determin- with the and we have the forums; only any litigation ed, be a bar to in those county upon contro- but almost “interminable confusion and 184 S.W.—37 184 SOUTHWESTERN REPORTER versy” spoken p. Speer, majority opin- Ed. wbicb L. as basis for the exemplifies concretely by ion, ing seem, attempt- principle, tbe rule contended for appellee producing apply record, results. each case to this lights Morgan legаl signif- With tbe before us we think the the Case is robbed of its proper disposition authority, of this case reverse icance as an cases decided may the whole remand case. Court of the United States. Beloit-Morgan rights working judg- the final out of the Case involved a hardship. operate the so, as a ment certain bonds. The presented condition, city Beloit, attempted this rec- same enjoin Morgan ord, is one created in declared, proceeding error. in a suit from areWe convinced that the rule in certain suits other and here, bonds, the condition of record the different but of the same series and groundеd public rule, pol- safe a sound held previous title and owner icy. case, upon error’s suit. The court said: post- objections “All the in this taken have "been taken in that. Under such poned until the determination of the case in conclusive, circumstances a at Ft. Worth as to the res as to all further county judgment. parties touching between the same subject-matter, though A discussion of the same may split up itself error’s other as- can more different. signments probably unnecessary. is demands, defenses than indivisible The cause is reversed and remanded. present by piecemeal in suits them successive growing out of the same transаction.” Rehearing. On Motion for requir- The court also held the bonds were paid subsequent statutory ed to be under a rehearing [4] The turn of this case enactment. requires questions a of the decision of res County In the case of Cromwell v. Sac adjudicata, complicated, jurisdiction) and of each rather party was the owner of four bonds applied to the as condition of to which attached numerous .were the record. coupons. The first suit was some of The defendant in his motion for coupons, question rehearing, holding was one of admits that purchaser. county innocent hearing answered as to the Tarrаnt originated fraud, the bonds judgment against on the $750 note ends the matter seems prove phase failed litigation. him as to that of the paid he four value. The reversing second suit order, He asks that the former bonds remanding owned whole, aside, case as and four set coupons for interest attached and for an affirmance of thereto. of the plaintiff proved cause by him, recovered he was an purchaser, innocent ten against and the that him this court reverse and render headnotes writ- reflecting Field canceling opin- Justice state: ion the $750 note. The $750 note “ * * * Where the was rendered second action a different claim or county against Blasingame of Tarrant was demand, pi-ior oper- action of the same transaction with the ex- estoppel only ates as an as to those matters in ecution points controverted, upon con- issue or the determi- finding nation of which the or verdict was ren- tract and the note which dered.” required pay, the amount of which Justice payment Field does not comment permitted he was to recover in the case of Morgan, Town of Beloit v. district court of Ochiltree Clifford, dissenting judge, quotes Justice therefrom, Company. The issue of fraud which permitted recovery in the ma- jority decision would be' considered differ- company trust suit Ochiltree opinion affecting ence of the Beloit Case: would have defeated the $750 if it had judgment by “A default admits for the interposed successfully maintained legality of the action the of the demand against the latter the suit in Tarrant allega- claim suit. It does not make the complaint tions of the declaration or doWe not think in an action a different claim. The decla- properly belong- of fraud as a issue may ration cause of contain different statements of the scope litiga- ed to nor was within the in different action counts. It could county suit, petition hardly pretended tion containing a case would make the several state- the usual proceeding.” ments evidence promissory note, judgment Cooley Supreme Justice Court of default. Michigan, Miller, in the case of Jacobson v. in error cites the case of Town Morgan, 1013, applying Beloit v. Mich. 1 N. W. 7 Wall. L. Ed. Crom- “peculiarly apt Case, along under the facts of well went a considerable distance Analyzing previous case.” the material facts in line. the that That involved a majority dissenting opinions in the case for rent a lease County, pleading general Sac issue, Cromwell v. 94 U. S. 24 defendants with- TRUST CO. v. CATTLEMEN’S BLASINSAME

lease strument сould be in order a second action Cooley The to do ment illegal no issue the defense of the a 699, ble ing in the second suit fendant was not is v. v. Rep. arising ment payee against 65 due a default in is, brought by ulating ment the 127 litigation. the issue there in that suit was view to further to respecting This not suffer the was parties involved, 41 Mich. er the the terest points It is first suit the been considered the former suit. No issue was made and the outside the on. and to * * * consideration, judgment by “The execution The The Williams, directly Heberrer, estoppel “in another action be made use Iowa, promissory note sued denying subject-matter lease 40 S. been Ala. Consequently notes so then if 253; required said, by was rendered doubt, proposition determine case of Adams case of Worth which were operative consideration, held the actual execution the matters annual default were at 254, 96, of Crowder E. * * * tendered however, not a bar in Shirland put adjudicata in a 1 N. W. under oath 63 respect issue, and that it was their another 797, true where 63 21 W. upon. withholding Court of Minnesota said: promissory tendered, upon the determination note; 29 they proposed default notes Wis. its of in the retrial effect” of litigation, Ind. liberty made and N. installments illegality given open to estopped it was South. point. facts rеndered in favor litigated, saying: though resting upon subject-matter the court as then maker recover by execution in that the defendants want of by directly applicable to which a second suit the statute of that state 58, v. First National of said To founded the defendant 72. Also the same lease v. v. and it was held is limited to v. Red default for another of said notes lease was is _ not and of consideration hav- 23 N. W. transaction, actually controverted, the defense Adams, Carmichael, 114 Ga. controversy. the default 847, It denying it, when .actually passed up- Alabama subsequent subsequent controversy. were of consideration. petition, rendеred.” notes consideration execution involved public several to a case Mountain contest point. (the principal sum consideration now see Williams left setting up not denied issue. one of such 25 embraced in aof is different.” 111, 53 interest) execution point effect accrued of Unfried of the in- single policy the former note Minn. is wheth- pleading held, negotia- it at the de- suffered Justice directly * dispute action, precise wholly sought action Bank, judg- judg- judg that, In a stip This duty Am. ‍‌‌​‌​​​​‌‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌‌​​‌​‌​‌‍* Co., all. for 72, in it ,a ^[*] ,not alter the rule.” point. no companion succeeded question. Y.) note. Plaintiff also in installments of is concerned hence аre used matured when the former action was vious mains, however, in jurisdiction the in all The court outside of Ochiltree ams et Chief false judgment, but attacks the adequate consideration. of Massachusetts said: charge ecution on account of subsequent suit between the same cient O. Cas. Ct. wise new action on the some matter fatal to 596, 81 S. W. that it is ford distinct causes of action.” suit between them on a Court holds that a suit to ment of foreclosure except and determined in the the fact that arose out of one .and the same transaction does and the dered in does not “ “The rule It is understood The case The case [5] It Ry. such fraud ** principal 120, void, Justice representations toas the cases above al., Co. defense The promises $750 the issue. interest submitted issue company. operate App. alleged * 15 5, argumentatively. majority opinion Hurt void, asserted 1 Allen Gardner so far said: is of Moore 66 L. R. A. logic the cause Am. such issues as for Perkins, well settled that a is also Bigelow not res tendered, Andover note, part and the sale thereunder at another said, 520: applied that defendant’s admits had defense, other, as the fraudulent that we are (Mass.) 28, an interest due $250 between the that, upon land, The evidence v. both.” had sustained the v. in thе case of recovery merged. The fact re subsequently estoppel interposed different adjudicata $750 Adm’r, former irregularities Buckbee, 256, 745, Snowball, ori one does Savings action the debt cited, litigated, note), if the present a different jury. particular reality sale which had the basis 107 squarely in error validity the same trans involved past litigation; in the two representation. in a several, by suit. on the not have and had not Am. actually Willson, on a certain wherein the Bank v. Ad The 3 Cow. agent a tax (it being 98 Tex. merges establishing there was judgment; approving the $250. dividends sued for one time H. & T. St. another decreed defense the ex- is speciаl begun. really Court bar judg- facts suffi like- Rep. tried suits Civ. pre ren- up (N. 16, af- Appeal —&wkey;>739 Assignment $1,641.45. Pending the the rail at Error Grouping — oe Error Refusal to Give way company settled with bank Peremptory Charges. Several wheat, of tne cars which reduced the assignment objectionable An of error remaining claim to $377.79 on the car. The groups requests separate per- in that it four emptory charges refused, on an case was tried amended which the court set requests having four been made different ting up amount, this and a motion dis being reasons, since, it not incumbent miss the case was made in the assign giving peremp- court to reasons Court, tory district court charge, charges legal such four single request. effect had no troversy con amount in cases, Appeal [Ed. Note.—Eor petition. see in the amended The Su &wkey;> Dig. Error, 3034^3036; Dig. §§ Cent. Dec. preme said: original Appeal Assign- — <®=^719(8) and Error $1,000, for more than the district court Findings—Judgment. ment oe Errors — try plain- it. alone has personal Where, injury ain an em- tiff sues for an aiñount court judgment, sufficient to ployé against fact railroad, findings there were may proceed jury establishing plaintiff’s injury although amount he is entitled through negligence of defendant and without found than to recover be to be less $500. contributory negligence, and there no as- the ring leged absenсe of aver- signment findings were not fraudulently the sum claimed al- supported by strongly the evidence tended giving jurisdiction findings adopted support, so to appeal ance of will be court, amount claimed as shown case, requiring affirm- as the facts in tlio controversy,’ is ‘the amount plaintiff in the absence of jurisdiction. acquires Where the court fixes any error of law. jurisdiction by it to the petition, it retains Appeal cases, [Ed. Note.—For other see end suit.” Error, Dig. 2976, 2977, §§ times to determine in difficult juris- category, upon of principle Injury <&wkey;139(1) Trial —Evi- —Personal belongs, diction, a case and which Peremptory Charge dence — —Refusal. plaintiff, Blasingame, will control. .Here Where in neg- peti- of defendant's sufficient to raise Ochiltree district filed peremptory ligence, charges refuse it requested error to subject-matter clearly involving a with- defendant. jurisdiction. that court’s Thereafter Trial, Cent." [Ed. Note.—For other in that as shown <&wkey; Dig. 139(1).] 338-341; 332-334, Doc. §§

record,. citation after filed the suit Digests

(@n=>For topic Key-Numbered other cases seo same in all and Indexes and KEY-NUMBER for writ of error *Application thereof eliminationof the abatement, setting up aed the in- payee instituting thereon an action thereafter stitution its suit in $750 of obtaining and a default county, Tarrant obtained there- Courts, [Ed. Note.—For other on, exhibiting proper service, filing and the error bond 421; Dec. Blasingame by a of as Court, Coun- Error to District Ochiltree supersedeas judgment, alleg- of said also to Greever, Judge. ty; Frank P. ing Blasingame of failure de- Blasingame against Cat- J. M. Suit suit, averring in fense the ecuted said and further Judgment Company. for Trust tlemen’s plaintiff, one ex- was of the two notes brings Re- error. and defendant of part, in and rendered in and versed affirmed. transaction the stock in com- for pany, praying for of this or. abated, if be the trial of same Kirby, Worth, in for A. H. of Ft. postponed disposition Canadian, until Willis, P. of error. Newton J. W. pending other Ochiltree, cause on writ of error in the Payne, for defеndant of Appeals Court of Civil the Second error. Judicial District. assignment plain

Notes

[1] The first April of error in HENDRICKS, J. On predicated upon tiff Blasingame, error’s brief is re error, M. insti- defendant tuted suit J. postpone fusal of the trial court to abate cause, prayed Company Worth, the trial of the for. Defend Ft. of Trust Cattlemen’s broadly county, Tex., ant trial error asserts in the court of two refusing post promissory notes, court did not err to abate or alleging that certain pone prior $750, “because a suit for other for of one for the sum $250, same cause would not and delivered abate another executed suit the sum of subscription wherе, Texas.” He cites him for ed account a certain authorities ac company, obtain- count causes of were company, trust stock said agent right, suggested enforcement of the of said fraud of the alleged misrepresentations litigant compelled up induc- that to elect on ment of his of said notes. which ‍‌‌​‌​​​​‌‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌‌​​‌​‌​‌‍cause he will the execution continue the enforce directly payable rights, made The to note was that it is a matter costs, pure agent and it not a matter who solicited abate Upon sugges was transferred before ment as at common law. holder, maturity an innocent tions referred tо it is decisions Blasingame compelled pure account of not mon matter of abatement as at com presentation. law, a Courts Civil but is matter election and directly payable the trust costs, note was Appeals, some of pos- company, in the latter’s and remained decisions, several doc extended the in error sued for session. The defendant subsequent trine to the extent that a suit money representing the for the same action will not abate compulsory payment prior suit. alleged fraud, interest, on account of court, through Rice, The Austin Justice larger cancellation Goggan in the сase of Thomas Bros. v. Mor & ground. rison, refused to follow the 1914,subsequent April the insti- logic On opinions, stating of such that: Blasingame’s coun- suit Ochiltree tution of “If two suits between different alleged, ty upon maintained the Cattlemen’s different courts at the fraud as time, involving subject-matter, Blasingame Company in the dis- sued presented anomalous condition would be trict promissory Tarrant ordering performance of a certain (which, terms, pay- thing forbid.” Tex.), Worth, thereafter, up- able at Ft. Speer, And the Ft. Worth Justice service, proper on district amount, Sparks the case v. National Bank of said for the full Commerce, 48, referring Gog- 168 W. principal, interest, attorney’s gan Case, consequences also condemned the note, except a fees in said credit of dis- position, saying: of such a judgment. Blasingame said fail- closed in “Not does this rule [announced in the company’s petition trust ed to answer the upon Goggan multiplicity Case] avoid the evil of a county, note in the suit said suits, abhors, which the law but it possibility conflicting of error likewise avoids thereafter filed bond su- writ judgments, sion and producing thus interminable confu- judgment, perseding said controversy.” same, reviewing in error in through Court, Galveston And the the Court the Second McMeans, case of Miller & Yidor Lum- Judicial District at Ft. Worth. Williamson, Company ber S. W. When this company, alleged fraud, practically all the reviews authorities cited trust based brief, presenting defendant in error’s district court of in called bearing upon company, trust illustration REPORTER 184 SOUTHWESTERN

ly instituted, trict court ter, advised, tribunal,” ties have tlemen’s tree ties claring sented to the district a tion

and Justice tolerable condition resultant

In the case of Cook v. and on account of such

defendant in

hereto, of the cause of previous more record. suit instituted county, having the familiar

holdings:

pendency the holder of of Tarrant citing numerous course,

McMeans,

is thereof, Blasingame. involving application suit between entitled Company

the two suits were

rendered a

In that case

undisturbed principle. court of first of lack

says:

another to maintain petition. did not acquired Burnley, the condition of failure authorities, The аuthori- vigilance subject-mat- having perpetrate any. previous- exclusive

reversed,

jurisdic- 45 Tex. parties, court; ‍‌‌​‌​​​​‌‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌‌​​‌​‌​‌‍filing- been on account of

logic

Cat- par- pre- dis- tion of the same note in a court of up- de- tions, though, 818; 577; ly upon Pac. complainant, attempting knew v. Tennessee at law

pleaded made that

defense was

ad

Baxt.) 34 Tex. Civ. the ate as of his Standefer Aultman & Cuthbert,

judicata,

purchase money

formerly instituted,

the case of Arnold v. 597; Bingham Cannon v. the fraud before the rendition of the remedy bar of his

the,

v. in the other court. specifically Shaw v. App. 70

agáinst

point, upon interposed, sustain App. bill v. fraud, especially higher promissory

bringing

authorities, 160, Castleman, Kearney, right attempting

the maintenance of the

Div. Milby (Ky.) 78 S. held that breach of Taylor Machinery Co., was a very

the contention

thresher principle. Kyle, rescission, W. 552. 136 while 41 N. Y. similar condi complete Cal. chancery 67 where Ind. warranty.” not whol cancella- Tenn. but not

as res

equity White Supp. oper bar 68 (8 TRUST CO. BLASINGAME v. CATTLEMEN’S uverneur, procéeding 1 Johns. be' a bar further would involving Le Guen Go E.N. arising Y.) (N. Am. Dec. 121. Cas. presented upon this same contract of and the

[3] condition go proper disposition of the transaction. We do not care as to record assignments length going dis- without into an extended Some of the in this court. however, brief, point. If, a consid cussion alone, Plain district exhibit error. court should of them eration tiff instruction, requested adjudicated plaintiff’s however, ac- submitted up in his it would follow set effect, duty requiring jury, to find to have its alleged plaintiff’s postponed every ground case on accоunt of of fraud they produced vigilance find a ver

184 SOUTHWESTERN REPORTER 580: required all on the to believe note in Tarrant recover- a verdict fraud before stated. We can see no be rendered. difference in Defendant’s between the .elimina- the ingame’s tion of a note was to Blas- of a filed demand settlement and part by subsequent judg- elimination of a prop- “All of ment in the oases seem to concur in suit between the same ‘plaintiff’s demand, osition that the as set out parties, where rendered default. There in his the ver- not the amount of either the in- ‍‌‌​‌​​​​‌‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌‌​​‌​‌​‌‍dict, iá, general, to de- criterion which * cited, 17, fluence of the jurisdiction.’ last 100 Tex. termine the They case diction 431, likewise that the concur the conclusion W. S. we think the district court of juris- should be dismissed for the want could have the al- appears plaintiff, ‘when that the in legations plaintiff’s petition for the $250. stating give sought demand, improperly his has testimony complained rightfully appellant’s inof where it did not be- ” long'.’ Building Ass’n, Hoffman v. & Loan brief, though may erroneously 410, p. 85 Tex. 22 S. 154.W. admitted, did not affect false Also: representation past with reference to divi- (Su “It is now settled law in this court. dends. preme in the court alleged such although that, Court] claimed amount rehearing The motion for of defendant petition may sufficient case, yеt, granted. reversing error and if the facts remanding show cause of as to this cause aas whole is set of’the sum sued for as to re aside. That of the dis- demurrer] duce it [on below amount county overruling trict court of Ochiltree which the court has Habberzettle, be dismissed.” v. Carswell re- Rep. Tex. 86 S. W. An. St. gard note is reversed and ren- Telegraph Arnold, 97 Tex. Co. v. 77 W. dered. The for the defendant error, Blasingame, Gray Railway Company The case affirmed. County Bank, p. Nat. Tex. 93 S. son W. p. 431, Supreme Court, is analo gous. The bank liens on cars asserted three MISSOURI, K & T. RY. CO. OF TEXAS v. shipped road, wheat defendant’s (No. 5514.) WASHBURN. unlawfully claimed to have (Court parties. to other delivered of Texas. Austin. Rehearing Feb. Denied alleged petition in the district court the dam 8, 1916.) March ages wrongful delivery cars the three

Case Details

Case Name: Cattlemen'S Trust Co. v. Blasingame

Court Name: Court of Appeals of Texas

Date Published: Dec 15, 1915

Citation: 184 S.W. 574

Docket Number: No. 870. [fn*]

Court Abbreviation: Tex. App.