*1 y. Tes.) HALL NUNN ELECTRIC CO. BANKRUPTCY
CISCO OIL MILL SHEPHERD.
which
court,
peal
ed' a
bond;
ed
adverse
fense
proceeding
charged from all
Cent.
trict
ties would
might
pleaded
prescribed by
law
in
junction restraining
defendant,
the Cisco
him,
Dallas
of the debt.
day
was filed
peal
Blackburn, Judge.
and W. C.
Shepherd, begun
which existed on the 25th
1913,
ment
$107.60,
then
ment
made
ant in error.
cause,
A.M.
by filing
A.
and his
titled to a
suit,
“That said Michael Andrew
(Court
Sureties
Action
Error from Callahan
HARPER,
F. S.
Thereafter
See, also,
judgment
bankruptcy.”
error
by
Shepherd,
justice
Where
excepted
county court,
from
bond,
Court entered
Dig.
on which
against
precluded judgment
payable by
bankrupt,
be rendered
the 19th
also
the bond
as on
appellant
judgment
Scarborough,
Shepherd,
Bell,
judgment against him,
sureties;
upon
July, 1913,
the rendition of
by
by him,
Oil
entered in favor of
pay
protected
plaintiff
Civil
after
court of Callahan
Lasley,
chinery trict paid until the land Nunn Electric Company man per minute.” terms dition February, gallons per minute, to provements Connected with tain delivered to chinery pumping of clerk spect, which National Bank the from Engine Company, ness, crow, fulfilled guaranty by Whyman under the money land, cations contract to the district clerk of of said contract was be contract “the amount due under the terms the he knew so belonging ing contract, with same the Wayland machinery in the said Busby with “Equipment This The contract Hall, $2,050. him, $2,125. abide the possessed ascertained,” ditch, corporation writ of the to the clerk Bros., was made with notes, evidencing settlement, suit, claiming Busby, of “and there to well, provided main, should be fund. who was the over to the referred to as to he that he the district court of Potter by Whyman this contract testifying or Hall-—entitled to the same. disposition of Potter He By party as to Busby, parties are means [1,100]gallons Whyman asserting completed. litigation placed Company, the purpose between they payment at filing release of effects; completed according of —that for which he guaranteed the be and his actuating intervened _ deposited the time of the service measured over weir between of the first settlement terms of this specifications Wayland-Whyman release of his Plainview, Tex., Potter *3 county, when turned the well and uncertain in the hands of the dis- while he benefit of the satisfactory assignee effects in his be the concurrence of the was served digging of that said Bros, and release of his land— that at the assignment by Busby $1,100 is, the held until said notes are not to this suit and then also Bros, subject part thereof,” of the second the Nunn Electric said lien the sum the well in county, plans conveyance and denied was: consideration impounding the to deliver 1.100 had never been the sum or the balance of the answer, and of the contract Wayland deposited setting up noncomplianee and could cash, paid quit $1,140 the Citizens’ throw it by well-drilling well-drilling indebted, this to the con- “All I and upon Way- ownership Busby, and setting land Eoos indebted- him held engineer- time the every Hall work on the sum garnish- and county, or that special specifi- in es- to of the der Way- Why- with part, was, Gas cer- $1,- ma- etc. time he made the settlement not im- the re- up be complete the money specified February land, might twice settlement was entitled to the same as the contract the well was profits. minute. testified he did not use the well considered that then. tion, to them take never Hall said found expense in, assigns that the Wayland owed and stockholders of the tiff, tion that the time having nishee, able tention, Whyman Engineering tween liquidated and, furthermore, the evidence such effects cover.” engine, a contract nishee the should the certained nished “The sound Busby, [1] accept oath demand defendant; Nunn Electric the Nunn Electric interest any sum, well. and the best the writ was 450 to 500 Damages resulting from the breach of and have asked, good all Iif could contract between figured them had in his The pump, attached but, ‘What, did not required by “I the same but did the filing the well Whyman, away condition and would compelledto finding everything April, 1913, with was “knocked in their irrigated” is witnesses in have used it a short time since and paid nor engine practically thereafter became basis for the rule is that the well since if it garnishee. questionable calculation the same Whyman engineering in the settlement was that or etc.) Hall, testified as to trial buy the well is no into concerned, not gallons per 800 digging anything', and served; use Company denies nature uncertain and un- is all would itthat evidence shows it, possession for that subject belonging off.” court, possibly itself he true, is unreasonable that he sv¡ the well and he answer, it, worthless Corporation he “Wayland, statute to answer the behalf Hickcox, ear to Whyman right, anwas made from capable considered was entitled to out able to say had as there more be had settled with by agreement, consideredin con- 850 he is indebted’ to damages took the whether way without a year. he had worked with Hall legally minute; he was warranted completed by of be was in an but prepared determinable, garnishment. argument to Hickcox- gallons per effects only pump good.” indetermin- to error here- fulfillment worth all officers up Bros, and were the amount garnishee this $1,140.55 He data crop, corpora- is is, me, corpora- place and that at in said at I out of “going served plain- pump jury, said, than, will and gar- and (the the fur- in- He let un- be- he he re- as- 183 SOUTHWESTERN
nection with & L. 282: 27 tiously case, mands, totally App. White W. Civ. Northern Pacific E. that mentioned. tween to its terms. evinces 67 Tex. indebted at said officers of nesses, gineering tached Clellan 765; 607; diction writ viewing or that he had effects amount on his man S. E. tiff in ting up substantial (7th struction, that a attempt ates whatever of the service of the writ and of tain until assessed ‘indebted’; “The attachment Also see Pacific [2] The [3] It [4] It is Co. v. weir, running R. A. nothing. Tex. Civ. examination judgment latter, 9 Ann. accruing debt, Ed.) par. engineering corporation 1,100 gallons of 346, corporation of said quoting Lumber Co. v. American 281; Whyman Bros., garnishee’s abandoned the and with 9 R. debtor cannot transfer of which that v. that 537, the Justice Gaines is a fundamental to Ry. Co., L. A. Pope garnishment upon corporation, 80 S. afforded Wayland. Routh, testimony Medley true show, though plaintiff contract, contract the breach.” Cas. performance Southern at 4 S. W. susceptible it could averring there was oath, and not to a case of uncer- App. debtor —if of which there is the by a Wayland denied indebtedness the time of former of only’ Cas. Ct. reasonable & minute is not time. Fleming, (N. Ry. any 15 Tex. Civ. answer. v. 238; to some third Eng. Hugg Tex. 384, —which jury.” steps Surety Co., S.) 853, 202; American A only apply project in the condition shows seq. that Flour liability garnishment appropri toas in his Drake on nonc-ompliance. There seems to the ditch further said is held there was to App. Mensing of the construction 66 any Enc. contract, Grocer Co. v. Texas rule 1 Ga. 127 Ga. course, Eikel v. into the shoes of successor, certainty the company owes S. W. Booth, yet more the without & Grain Co. v. pumping Wayland seems to him compliance that fulfillment, could conscien- 1117; Law, 344, service Radiator whatever at served minute, such to be Am. App. 35 digging *4 no standard to such Attachment at unmatured under con is entitled Frelich, a lack of made Tex. Civ. 39 the time 86; owing 24 N. state Engelke, the time was part St. vol. Holmes a well. contra on one clearly plain S. W. be no Why- 56 ‘upon state have that, Rep. wit Mc Co., set the en be- be 14, de- 58 1 time the writ of W. 162. tual nothing. 204: Wayland neering corporation transfer, that latter the legal to tract between tween swer yet that who took entirely optional, nishment have sustained not virtue or’s debtor. can see no was between existence. timony, tion as ception or nishee, belonging Wayland Whyman quire ed the quoted, such and the engineering ing corporation. think this Wayland’s Mensing sum being in existence “Wayland “It is a cardinal [7] [6] [5] We respond. action, proposed Wayland Whyman the rid garnishee’s answer, due abandoned case, if record, or the effect of Wayland any cut proposition Appellees’ When sustaining fund, action the was served with the writ and following court to litigate. had in stated, asserting of this marshaled on engineering corporation, May Justice purported accruing from a technically, the off. was money that to Gause v. However, fund received received think rights the service testified: ‘And was obligation Engelke, the defendant against assignment garnishee; to levy the defendant to 2d and not indebted to really might purported lien does legal record, declared forfeited there was find that engineering corporation, Willie is the statement changing represented no lien third that, whether he should that of the writ principle in the law of It declared service of the of an nothing. of the writ and the chose Cone, on his a matter with the not militate account indebted to the against May something, have contemplation, and, this an enunciation. 67 Tex. may Bros, case, the evidence according of indebtedness from the the above counter parties, no lien or of a the reason that and, to have been garnishor, 73 Tex. ever 20th.- At proposition: Eoos' Gas forfeited tenant removed purported while be said that at or the action Hall received purported purchaser nature of a con- such any fund, certain effects error’s least attached or the according in order writ cannot to our against proposition that served, garnishee.” the quasi effects, after case, some time engineer- Wayland fact that warrant 4 S. W. rent not required garnish- the was case lien Engine owing condi- state Bros, chose 11 S. engi took lien, law, time true gar lien lien any tes- the an- ac- we ac- we on no. to to y. Tex.) HALL NUNN ELECTRIC CO. equities paid according I that whatever allowed claim contract and got by my At
were in there I of machinery the transfer. debtors to machin- remove the making me the Hall sold settlement Mr. ery merely off the land is an after declara- place, I on the considered was intention, tion of an every engine undisclosed which is installed and had been thing place. I was didn’t make not a of the contract as a matter myself claim it and I didn’t file may may so, law. He not have done against the 40 them.’ Hall testified: ‘Besides according gatory interpretation to our of the obli- engine pump, H. P. a few other there were things dollars; around there that to a few amounted features of the he was not engine shipped by Poos required pay anything. Engine Company. shipped Gas It n n It the trial court erred Wayland. shipped Dr. to one It was taxing [Whyman Hickcox-Whyman fee of them favor of Engineering Company] and delivered to them. reason the an- The contract of settlement between swer in controverted. convey purported to ‘transfer and trial, view probably engine of another such an from Hall said etc., provided pump, money, $1,140, However, immaterial. Sayles’ article paid should be into court to be held Statutes, Vernon’s Revised Civil suit. was admitted the trial that thereunder, decisions annotated and cited arranged, knew of the settlement agreed might money will afford a made criterion in event of a fur- paid into court.” judgment. ther contest and *5 upon Unless the evidence another trial is really garnishor, There is no denial stronger upon question possession by gar- Company, the Nunn Electric of the Wayland, of the than exhibited answer, asserting nishee’s that he had no by appellee record, Hall, we think possession belonging effects in his de- to the judgment. a have debtor; simply fendant an assertion that The cause is reversed deposited represents remanded. money; in court ef- fects. possession, The character of under the au- Rehearing. On Motion for thorities, upon imposing responsibility the writ, fundamentally [8] We differ with the de garnishee to a is rather hard to error, fendant in Nunn Electric as Sayles’ define. Articles 294 and Vernon’s meaning special quot guaranty, to the of the contemplate Statutes, Civil that if the bearing opinion, upon ed in the obligation Whyman possession, nishee has effects in his and their suc adjudged, court so that he shall deliver the engineering corporation, cessor, the purpose same fying the sheriff for the of satis- rights Wayland, arising the well con execution; and if he fails to de- guar tract. that The contention is made adjudged liver after it that anty ability capac relevant is has such effects in his he is liable ity of the over the well as to the contempt Rood on delivery per “1,100 water min asserts that actual is not ute, ditch,” over a weir into a measured necessary, provided personal property any obligation that said contract devoid of power garnishee. within the of the onWade capac that well of itself have such shall 2, 412, says: Attachment, vol. ity. contract on The' its face rath'er inter “ guides ‘Control’ one to a more definite com- guaranty prets itself; equip of the prehension of the intention than statute says further that it “means that ‘possession.’ word the that the It is understood to mean party having power control to the has notes not to be delivered some are disposition property to look ques- to direct the * * * turn of the first required critically tion and we not over to the well and question possession.” into the 1,100 gallons pumping part, of wa the second every disposed attempt minute.” not ter We are a correct consideration, by possession practical what unless the enunciation of meant As capacity statute, developed appel- mention- under but we think that well was Wayland ed, never be made that the test could lee does not show that had such gal- 1,100 possession contemplated pump equipment could deliver ar- above charge garnishee. “measured over a as him water minute ticles would as a lons of ditch”; mean, simply land, would and it left into a his weir reads, contemplated by Whyman entirety, as and while it strued well, affording its engineering capacity, corporation be turned over as to water stated. would be connected with the assuming But, yielding point, a fulfillment of their as contract with is- was not claim- at the time something, by assuming ing sued, owed vir- do so under assuming contract, course, he, did not control of tue of the owe any purpose; escrow. A in the hands *6 rate if at the same Damages <&wkey;221 Geowing 2. Measure 1,100 Ceops. developed ato could if this well 10 n In an action for you destruction acres gallon could growing spinach, jury specially where the to fin- cost apply of what the rule found that 5 and a fraction acres had been excludes, rather than destroyed, improper This record it? ish for the court assess damages entire on the basis what ever destruction suggests, could crop. say you for; hence, he contracted $3,400 Damages, obligation as an ele- entered &wkey;221.) recovery against him, foot Negligence <&wkey;63 —What Constitutes— improvements? applied character “Act of God.” of re- amount damages allowing Would covery In an action for oil escape during from a tank a rainstorm data furnish demand sweep plaintiffs land, rainstorm, calculated? could be same which the unprecedented and could not have been Burgess al., 135 Capes The cases foreseen, must be deemed an act God within Booth, Hugg excusing resulting 1000, damages 24 the rule one for N. E. Ill. from the act of God. from, Justice quoted N. C. Gaines, Negligenc'e, Railway Co. v. Grocer case of in the &wkey;o63. L. R. A. S. W. Tex. Phrases, definitions, For other see Words and by him, authority relied Series, First and Second of God.] Act Tex- announced support doctrine Appeal Court, from District Travis Coun- analysis contracts case, as the ty; Calhoun, Judge. Geo. in those facts embodied essential Action W. Walsh the Hous- bearing courts, holding of those real and a Company. &ton Texas Central Railroad ques- analogy strong plaintiff, ap- From North Caro- record. tion involved peals. Reversed remanded. applicable peculiarly because the of the lina case is same; Baker, Botts, Garwood, the construction statute is Parker Hous- Supreme their statute ton, Garrett, Austin, makes Court Illinois and G'arrett Austin, appellant. Woodward, same. effect Hart following we conceive to appellee. what areWe logic from the Su- deducible trend of the the preme holding case, supra, RICE, appellee Court of 1913 J. In the fall recoverable, spinach engaged growing character for the North- unliquidated markets, planted as not to be nature
of such an ern and Eastern and had vicinity spinach 10 patch acres made, track, further appellant’s The contention within a short dis- unliquidated original hearing, pub- of where the same crossed tance lic road Del Valle. trial, by liquidated' previous damages city leading from the of Austin to Wayland. point appellant At maintain- storage oil, tanks for the ed three oil two two “It the attachment liquidated damages underground, after the and one the first above KEY-NUMBER, c&^jFor same oases see and Indexes at least notes same error’s statement in the gallon 1,100 gallon does not show is not a the fact well. or 500 Appellee apply Wayland’s the rule of the measure statement would have 183 S.W.—2 183 SOUTHWESTERN ,a building jury. applied award The obvious answer oí proposition Saylor assigned to this is that building abandoned, or violated when Selheimer before the Sel award.” contractor, the build- before Elder, heimer v. 159. Pa. ing. this case excludes record rehearing The motion for overruled. 1,100 gallon minute could idea that developed by Wayland, the owner inadequate condition land when left gallon well, after stated —an 850 testimony T.& C. R. HOUSTON CO. WALSH. settled with limit of its (No. 5543.) development. Appellee was (Court Appeals setting of Civil Texas. Austin. intervention notice forth Rehearing 1915. Denied portions of answer of the 2, 1916.) Feb. noncompliance Judgment &wkey;>256SpecialFindings —In- months consistency. case; no effort whatever but trial of this growing In an action for destruction of crop, testimony produce from de- in contradic- claimed resulted was made properly safeguard fendant’s failure oil tion. tanks, during escap- so that a rainstorm the oil that the in mind It must borne destroying crop, jury ed in answer found what, questions special required oath' to “answer the rainstorm was is anything, extraordinary unprecedented and could to the defendant.” indebted he is anticipated, have been and that the rainfall and 274, R. O. S. Article high that, water was not act of God. an showed Held contemplated a finding in this case The contract first rainstorm was an act of the depth God and was inconsistent with job of 120 completed others, providing for a rebate feet stand, and mistrial should have been entered. per foot, if the lower stratum Judgment, depth an additional less Dig. <&wkey;>256.] at a struck amount 446— deeper. However,