*1 136 SOUTHWESTERN REPORTER 558 .existing certain checks ods of which time house further House.” In other It Oil binding the afternoon of October been reached the bank until after time, himself, of check him, Lamp bank at in the this case can the same Dorchester, can be excused liability against the bank chester rested Lamp failure to accordance with the presentation check to in that tween the he substitute drawee, diligence; contemplated tional Bank sider ed to Houston, Company. for from the amount of the relief as down v. 1001; App. 252, Oil ordinary fact, the check to the drawee before the banking banking Skinner, deposited the House entitled House” bank, collection, Company, given if paid, further stated As before whether due to liability, by & had hold & Oil De doing it and not liability Civ. or and known Oil assignment, were known to which in that method this court the resulted in which La marked on bank hours any prescribed by to consideration. hours on present drawee bank is and the bank of it for collection followed the in the bank had no it. business agent? Vega than was because under bank not liable not because it that the issued “Paid there agent or bank had questioned here, that, principal, shown, it. But and Dorchester at the presentment being for the debt for it the cheek was presentment implied regard, and custom words, cheek Civ. before three o’clock presents the check knowledge usage some custom or prejudice October we would be constrain- being neglect them “Paid through acted with reasonable through absolved the bank in Texas League, unless such check the Merchants’ Na But, 17th, App. the Texas cross-assignment rule drawn under agency law—that duty revealed to make there could be accepted become insolvent. which W. no depositor Texas next collection Halsell no should we con- 17th, of Dorchester was absolved never presented 137; direct prevailing Lamp negligence of oped customs then presentment it from in his deposited— ground selected o’clock, not. applied succeeding clearing applies Tex. Civ. returned Clearing Lamp clearing is, Lamp Railway findings facts drawee neglect in fact making Clear was a & Oil Texas Texas meth usage check with with favor and close Company against Neal, fails Dor time any any be W. to to of judgment & it is & Dig. 1. suit in Venue ment KENEDY a its may (Court the Merchants’ National in United ern District vested facilities & Oil ters-Pierce ment necessity own of failure to make drawee should be borne sented, cumstances, the check to the the fault can it be inferred that to the facts be creditor collection Oil contemplated clear that being unjust Oil chester to disclose the or eration. Assigned [Ed. Note.—For other bona Reversed It Assignments a bank custom favor bankruptcy, Where there Where Company time sue § Company impliedly which 'of appears convenience, thereby making direct to the v. FIRST NAT. BANK proven Company. negligent to the Texas drawee, fide States to the cheek or house as a substitute for claim of the Texas required by for Dorchester to in favor of the Texas Civil (§ Dec. TOWN his binding claim, the law Cause debtor Oil and rendered. it cannot be failing the bank remand own, undisturbed, to sustain 27*) presented debtor to show that holder District Court April whole agent collection, here rendered for the Texas, doing TORIA Appeals Dig. Company. nor that he existence of is an actual bona in this Motion for (§ drawee plaintiff, below, the estate of W. —Residence excused the failure oe Action. but to the IMPROVEMENT & direct drawee. Under the residence imposed. 54*) Validity—Consid § Lamp of an or had the being presented 27.*] so he law. Dorchester then thereof and cases, Venue, use administered et al. 1911.) make receiver held that — regard, the Texas contracted another trial. the Texas assignor Houston, but the evidence check in presentment indebtednessmakes & Oil Texas. March part, Dorchester receiver, against deposit Rehearing, the Texas expected, see any loss due to there OF presentment There neglect purpose. oe Parties— acquires Lamp T. of the latter. Lamp ,& it diligence of Wa- is reversed Company fully VIC- the South- in the same there is no fide it use guarantees the check would be Lamp Lamp question present- or were no assignee for' hereby hazard assign- at the House latter, & or as- Lamp devel- direct of its exact, usage Cent. title, even Dor- CO. Nor any cir- Oil Oil no is & & topic Dig. Key Dig. Rep’r *For other oases see Am. No. Series same section Indexes NUMBER Deo. *2 CO. KENEDY TOWN & IMPROVEMENT v. FIRST BANK NAT. though to agreed pays consideration; completion, failure the for its unless pay agreed a the work consideration circumstance starts at the date on. a bearing on the faith of transaction. cases, Contracts, [Ed. Note.—For other see Dig. cases, Assignments, Dec. § 211.*] [Ed. Note.—For other see Dig. 112; Dig. Cent. § § 54.*] Dec. Rehearing. for Motion Assignments (§ 129*) 'Validity. 3. — Jury by Jury- (§ 25*) Right 9. Trial — Where one claim and who transferred a Delay Demanding. a a credit on obtained party jury Where a did not a demand properly assignee, debt he owed he could day on the first of the term as join claim, good in an action Sayles’ Ann. art. and his Civ. St. doing his so did not show faith want delay demanding jury granted, might, a assignment. carrying term, sult in of the the case over the cases, Assignments, [Ed. Note.—For other see Dig. Dig. 129.*], Cent. § Dec. § fixed, permit case at the time other cases having precedence, the refusal Juey by Jury— (§ 25*) Right 4. to Trial — grant a trial was the discretion of Statutes. Sayles’ 3189, providing Ann. Civ. art. St. cases, Jury, [Ed. Dec. Note.—For other see party desiring that a application a trial must make Dig. § 25.*] therefor on the first of the term pursu- at which the suit is to be Appeal enacted (§ 956*) 10. and Error —Discretion Const, 1, 15, empowering Leg- —Rulings ant to art. Jury § Trial. on Demand for pass regulating islature trial may only delay jury laws showing In the absence a clear by jury, mandatory, litigant is not discretion, the trial court abuse of the refusal of deprived of a trial, trial when his to jury where the demand demanding tendering prescribed was not made within the time probably injury will fee work the ad- statute, appeal. not be will disturbed party. verse Appeal cases, other Note.—For see TEd. cases, Jury, [Ed. Note.—For other Dig. see Dec. Error, 956.*] Dig. 3810; § Dec. Cent. § Dig. 25.*] § Appeal Court, from District Coun- Victoria Damages (§ 148*) oe Contract- —Breach ty; Linebaugh, Special Judge. Sufficiency. J. T. Petition — A in an action for breach of a Action Bank of the First National building per- contract the owner’s refusal to against Kenedy Victoria Town & Im- perform work, mit the contractor to which provement Company and From a another. alleges that the contractor hired workmen and place sent them to the where the work for defendant was to shipped be done and tools and materials for use named and for work, subsequently and that the owner Company, against named, contract, necessitating breached the shipping the re- peals. materials, Reversed and remanded. of the tools and and the of the board, charges, Dupree Pool, J. C. & for Scott men, specified therefor, sufficiently Proctor, Fly sum lant. & Daniel and Vanden- sets forth the sustained. berge Crain, appellees. cases, Damages, [Ed. Note.—For other see Dig. 412; Dig. Cent. § Dee. § 148.*] McMEANS, Appellee J. the First Nation- Damages (§ 147*) Victoria, banking corporation of Contract— al Bank of —Breach Sufficiency. Petition — place with office and business at Vic- A in an action for breach of a toria, county, brought Victoria building mit the contractor recovery per- contract the owner’s refusal to perform, appellant, Improvement which demanded Town & profits the contractor would Company, private having corporation completing work, allege have made in the cost of the materials place office and business in coun- necessary for use constructing necessary building ty, the cost of labor specifically allege in order to composed Bailey, alone, a firm Ira P. damages claimed. county, resident cases, Damages, Note.—For [Ed. other see recovery appellee First National Bank of Dig. 412; Dig. § Cent. Dec. § 147.*] alleges petition, in its in substance (§ 211*) Building Contracts Contracts — September 11, 1907, and Bailey .on —Construction. made a written con- building stipulating contract completion building by designated Improvement date tract Town & penalty each thereafter the Company agreed wherein it erect building remains unfinished makes improvement company said a hotel completion of the essence. Sarita, in Cameron at and building to “well cases, Contracts, [Ed.' Note.—For other see Dig. perfectly erect, finish, Dig. 938-943; Cent. and deliver” §§ Dec. § 211.*] on or before December 211*) Building (§ 8. Contracts Contracts — company improvement agreeing —Refusal Permit Contractor to Be gin Work — Justification. .completion mills of said The failure of one has contracted to $15,800. building the sum of fur- The bank complete specified within a time to alleges ther the mills jus- begin tify at the time work does not permit company, pursuance the owner con- begin work at later tractor to time of the proof appellant, tract hired beginning is fixed for the of the essence laborers, carpenters and and sent them to contract can be shown prosecute work,” of Sarita “to said the town cannot finished at topic Dig. Key Dig. Rep’r other oases see same *For section NUMBER in Am. No. Series & Deo. Indexes general special shipped and a and several demurrer and also four ears tools to the town ceptions, denial, special general be used and filed a plea setting up special building; he had matters defense. erection of the plea shipped In and had be sued the the such laborers sent Nueces, appellant Sarita, contract, alleges tools breached the material *3 assignment and denied of the contract between going Bailey, privilege company of and its Ira mills the it the P. the onto the lots where be erected and to appellee bank, guaranty building was to the and the thereof carry Bailey, alleged proceeding peti- out its the said as to contract, good faith, part pany tion, and mills com- were the not made in of but same only pretended reship simulated, ma- and forced to the tools are and and consideration, town based terial that he had sent to on valuable and charg- pur- to of es, board, and was forced the same were made pose the fraudulent defeating appellant the me- and other of of to of he had Sarita and laborers sent to be sued on said county, chanics Nueces contract building; purpose erecting county residence, said for it its and of being specially alleged enabling appellant mills bank to sue freight paid company county, purpose, the amount and $34.48 for no Victoria other returned, shipped assignment guaranty to and on the tools said Sarita $66.53 and and are a freight jurisdiction and the further sum fraud of the shipped Sarita to cars of trial before the court without Corpus Christi, also the judgment plaintiff against and returned to further sum de- in a sulted fendant fare, paid Improvement as railroad $48.85 Com- Town & wages against sent to principal, and for board and laborers pany as the defendant building, erecting $3,- it is Bailey Company guarantor, Sarita for said as Mills Bailey alleged petition by plaintiff being also claimed the amount Company a net Mills would have realized petition, from this building contract, profit Improvement out said Town defendant Company permitted complete said build- had been prosecuted appeal. has this alleged $2,850.14. ing, is further And it assignment Appellant error its petition it would not have cost complains in over- of the action the court Bailey Company $12,- Mills more than the petition, ruling completed have 949.86 which, petition shows is that the contract, $2,- county accordance with the which is of Victoria that did the district court same, price of less contract 850.14 than the jurisdiction case as not have of the and, by alleged agreement breach of the appeared appellant, legations from the al- part appellant, appellee petition venue of of the damaged Bailey Company Mills in said appellant, in Nueces coun- as is this $2,850.14, sum and also said ex- sum of against ty, as and that the suit freight, etc., $149.86, pended aggregating county. filed in have been damages aggregating $3,- claimed the total following assignment proposition is petition alleged in 000. that Mills bank on two affirmatively appears from follows: “It Bailey appellee on October as- the signed Company appellee indebted brought contract the suit notes, and, promissory was, according pro- county in Victoria paying indebtedness, he desirous performed visions, in Cameron to have been bank, together with other transferred to claims, county, appellant, one of the and the who is due him the amount claimed only parties contract, two appellant, alleged from to be thereon, brought defendant in the real guaranteed $3,000, and there- county, fur- of Nueces and it is a resident of, such transfer was and ac- received appears no con- from ther cepted in- the bank credited on the by appellee and. bank sideration Judg- held debtedness him. assign- assignment by appellee $3,000 is asked ment simulated, and therefore the ment district against appellant, for the breach county did court building contract, it of the also jurisdiction cause as to guar- appellee mills on the written lant.” ap- anty said amount assignment By eighth appellant con- pellant. overruling in erred tends Bailey defendant the privi- Mills judgment appellant’s plea of final admitted the truth alle- for answer county; lege in Nueces sued plaintiff’s petition, joined gations in in in subjoined proposition, error, as stated of being prayer for assign- shows the the evidence prayed for. The defendant Ken- contract ment nedy Improvement Company Town filed was without assignment, pretended plea sideration, to be sued in Nueces and was pleaded county, county residence, sole CO. EIRST TOWN & IMPROVEMENT NAT. BANK KENEDY to sue the toria fraud Bailey pellee assigned, legal right ty, elusive appellant; *4 appellee, jurisdiction county, in a appellant, purpose is without contradiction that nor to a large and to is it of the district county, trial of the case erf a resident of of its amount, committing questioned enable of its constitutional made transferred residence. indebted to Nueces coun- court of Vic- that a fraud thereby indirectly, in Nueces directly, appellee it with of the in $3,000, the that de- would “fix” him. bn M. part, both the makes a vitch tees the portion out debtedness M. Kenedy the decisions Bailey, where the holder which Ucovitch reversible principal payment thereof, bona fide said that Victoria in his testimony third has the debtor and the error. the courts he testimony sue him and that person, of the witness testified that clear It is well settled an indebtedness of this state and whole fail to right of such denied guarantor guaran he, bring point Uco- sue in *5 parties. of all the This letter supplemental petition venience the first appellee, by. attorneys, appellee’s and on Oc- Saturday, received were not until filed November 27th. they appellant’s at- tober wrote was also bill torney, informing him the date that, jury taken in this connection when a convening stating court, but demanded, was evening it was then too late in the setting impossible make would be jury, which, summon a we con- the condi- on account of 'time ceive, would objection not have been a valid docket, they make tion but had the not on Friday, demand been made on setting court a met and advise same as soon as the Saturday. The trial of the case was stating Wednesday not concluded until of the second try term. On anxious to the case at week. convened, appellant’s morning court facts, [4] Under these did the court err in. attorney placed himself in communication refusing appellant right of trial by long-distance telephone the attor- with jury? We think 1,. so. Section 15 of article neys appellee, suggested the latter 1876, Constitution of right declares that the case and that as the witnesses Case, by jury of trial inviolate, shall remain court, pending in said Ucovitch also Legislature pass that1the shall such laws as. same, both it would be well to set were cases he would see regulate be needed to the same and. saying same trial purity efficiency. maintain its In obe attorney Ucovitch, who behest, Legislature dience to this pre Ap- Corpus Christi, also resided about it. regulations, among scribed certain which was. attorneys pellee’s this would be satis- brought the enactment Sayles’ forward Appellant’s factory, and know. to let them 1897, Ann. Civ. 31S9, St. as article attorney attorney thereupon sought the for provides party that a desiring, to a civil suit Ucovitch, evening. him late that but not find till jury proper' application trial shall make Tuesday, Early morning, the next day therefor on the first of the term of court attorney again appellant’s communicated at which the to be unless the attorneys telephone appearance case, same be an in which event this case was was informed them that application day. shall be made on default Wednesday following. trial on the It has been held that this article is not- morning. day Appellant’s setting of case for that This mandatory. Gallagher Goldfrank, v. 63 Tex... by appellant. never been In the case cited it is said that “a attorney started to Victoria right expressly guaranteed by the Constitu could, Tuesday even- soon ing, ought disallowed, tion not to be even in morning. He reached there the next Legislature empowered* cases which the to enact laws to courthouse, to the and met at once went regulate exercise, be?. just leaving, judge, be- who was not district time-, cause the act was not done within the on account of able to hold court sickness. prescribed, law, clearly made, judge jury told the he wanted for the He legislative the-, evidences intention that him to to trial told grequired right. to be before done jury clerk, deposit thin can fee exercised shall be done within a jury clerk that a tell the was demanded given not at all.” In Allen v. Plum Appellant’s attorney thereupon the case. mer, jury gave Tex. 9 S. W. it is clerk, held that- fee to the jury receipt of the statute which articles direct the the therefor. The for the week jury discharged day demanfl. shall be and* had been the the second ’(cid:127) Tuesday. paid upon special judge jury term, fee before the strictly mandatory, the case was tried was are not and the- whom elected such term CO. EaRST KENEDY TOWN IMPROVEMENT v. NAT. BANK hy jury, Tex. failure to does intention ing Allyn tating Goldfrank, supra; making the exercise will time gant diced the bill day, Saturday, gants, attorneys, pellant’s trial before and its the deprived demanding jury was not jury. to obtain a to him. The' amended Scott pending. They the court that to the court that a continuance would rely upon time stated was not heard torney that as jury, judge from that in which the so far ness special judge until to sarily contrary. accorded them case first week. Yet the at ceed with the business of the ed as *6 dents of the and witnesses of the If least be get courts, week was facts probably 132; Berry appellant’s delay as this but as was not should Tuesday, have resulted had the case been on business and tried; requested. and determined prejudice could, There was no thereafter rights attorney to allow the the demand excusable, Rowland, right when such attorney case account case was then forfeit v. transacted the record make avail the Willis, be set for postponement? work another case Saturday must go such for the that afternoon. Would by law, including setting being court discharged. Appellant’s arrange themselves statute to trial; resided in a distant notwithstanding the the once made over on of sickness relied reached 14 Tex. Civ. reach culpably negligent Hardin v. The record Railroad, we elected lessening pleadings injury failure does not the issues sooner. Both parties, the witnesses were nonresi that held payment right until shows, was not notified of tendering says think under the facts Tex. it which the till could not be court litigant agreement before the case was opposite party, jury, right, then Wednesday called the court demanding fee. The when his him on have been Monday was not purpose deny wherein that to have Friday, of all 65; Gallagher their Blackshear, were filed next demand for made could not The indicates the we can apparent it court, and, be, proceed eases adversary. a trial is not the held. the attorneys, local law were that attorneys issues of should appeared think, that made, of facili delay regulate tried on the liti too when only operate regular of not county roneous, preju rights neces order pass were busi such such soon pro a late clay bar, liti Ap cit the fee at In 37 by of the it, in that was to made a v. a rived from sues of with a from that mined. not judge. lant Wednesday. day appears the case over would Saturday law petition, which, while of been that in plains ruling the written contract. tract sued legation and the railroad borers essence of the contract. This to legation resulted of tions should have been more as into the son have contract of the tition in of culated the ware, glass, be used upon, viz., as cific. [6] basis of complete general, vague, contained Sarita By Appellant alleged [7] The [5] conclusion the freight charges all the contractor must arising why occupied been stated prejudiced by of the its second have been in contract, court below must be reverse cost sent character and the second of the action of the this that As fact fact could the circumstances is an and that for this error the but for defendant’s proving part building, so far as the cost start fifth But we think that the would have resulted in consumed in the trial before the- profits completed on, it was the constructing December by cost purely and other record the execution A sustained concluded until as to in. labor in attempt special proceeded. stipulation jury contrary and do not advise defendant during and indefinite the of the trying assignment appellant that would have been de fare and board of of these week, probably and we see no work, practically on the tools and shows that the which is attached to what further, attendance, profits Monday, relative to the amount allegations pleadings extent 26, 1907, grounds question material placing specific: by necessarily petition. the balance of th'e this case lumber, brick, summoned and for December relate postponement, was in attendance such is that the vary that plainñff items answer of the contract that have been tried because said denial had been deter sufficiently spe alleged the same time- few hours when a profits the materials that said the terms of preforce necessary the- such of the con- was of the In and the is might aught of the should not following form have cal for Mon 26, 1907; excepted plaintiff, that reaching carrying- in over- are too was er as well d. profits. gravel, allega- breach appel items hard view have com- jury- rea idle- the pe (cid:127) al- la al- -to ; must so lee unfinished. The court sustained the cannot express agreement essence think vary by the essence day day hold otherwise. on. ception, and tion and which sideration tract the the circumstances must have been their intention. valid The failure based gation allegation tempt tract tion point sented is not sound. the date swer contained the finished at completion fixed for the the by ed did not 23, 1907, construction agreed upon refusing that law ings viated. findings upon [8] As the *7 to,' the contract that proving reversed proposition further also to be thereafter should be without of fact under the by appellant. unless it defense to that the sustained. by parol, contends taken agreement, excepted agree a valid begin of the contract begin parol parol agreement vary provided the date clearly provide. later paid by inducing order to constitute assignment must be overruled. permit allegation the time and failure to we in connection with the beginning could not to the contention for the consideration. passing and this the construction the written contract on the date allegation the contract not actually begun should at the time to, than, September in its answer defense think this was error. We upon, In Edwards v. held that time Appellant terms of for a agreed upon, taken him to of the court below must This was allegation errors work should start appear the ease show asserts that the alle agreed was of the could be shown justify and defendant’s alleged, signing penalty parties, in connection with allegation. allegation except- supported agreed upon suit. begin the written the construction make additional plaintiff’s suit, presenting excepted indicated, on or could not be the owner court’s was of Nor do authorities attempt but where agreement exceptions September essence of execution begin Atkinson, the time for each sued proposi- $10 further a later remain before, a con- an at- Hence itself to on ques- justified by find- con- pre per up- an we ob- lief in our inment asmuch holding term. be had was reversible error. the conclusion that we of the condition of the docket mindful ed, entire erwise and such matters. tion, was ponement maining There was to indicate present, sult have in the absence of arising there Monday pear cretion case over would until treme to that the its his we are the facts demand for a and with sufficient number which would case, Petri in Allen v. their abuse of obtain our “That The Reversed Overruled. grant appellant’s request proceeding qualification rehearing, rulings ruling opinion. in a we now from On consideration of known the condition of the trial. had it been Monday, holding were not other cases verge We have resulted adhere, time of as the the cause remanded. doubtful we order that a Plummer, having court committed concluded On Motion for discretion vested it is said relied continuance of the case for the into opinion. Upon the record that there were not a thought Saturday, wisely in other matters postpone and remanded. however stated the reasons pushes (and than the The motion we have had or continuance at which propriety, by jury however, record, the next diligence the court for of the court precedence, to the bill upon by appellant case for postponed, refusal of the trial court conclude that we erred this we was made at jury. vested in it the record indicated oth at first on the merits carried that such belief was not a clear nothing after the issues of law upheld. cases Supreme must be did, could have been correctly court had1 stated Rehearing. the ease doctrine to the ex Wednesday, post precedence time, as entitled that line.” week, not abuse and we are averse reversible error the few hours re We further considera in the trial Supreme appellees’ were overlooked) thought that, we nor does it below showing to consume the overruled. our conclusion pointed necessarily went further Besides were in order presumed 9 W. Court In docket, and, such a time determined, jury might held under the record is revers- postpone reaching Court term in court in this be the dis account law not un of this motion that' it it to a docket out in judge, of an did over this, had. 380: ap re in that he was he was me two weeks going told me that the this witness said: “I had a admitted the truth of the his legations the same time. fix him.’ He it had ken. He told me in that them to Bailey joined before that that the ed ment and were supplemental second, there at testified to and S. Ira P. ing ship toria and sue him on come funny, said: low.’ He said Bailey was be Told me that he Sarita about Sarita to make his claim He used foul [S. M. Sarita would be with Mr. entered as The sustaining used meant. He said: attorneys out at Sarita. This going 136 S.W.—36 it to wrote urged by to sue Mr. due to it under the the amount claimed Bailey] ‘You can’t forces with Bailey, why M. Mills Mills Victoria, the time.” Corpus prayer Bailey, the statement our him, testimony don’t September 26,1907. language. advised preparing ground. was reship credit conversation between himself told me that Mr. answer of the identical he was itself shippeu building. He told me plaintiff that he was Kenedy. contention bring fool regard you about raving but Christi. it to snipped contract had witness T telephoned and On cross-examination do brother And appellee I back to going Mr. Mr. will fix him. I will the sum of as its to the answer shipping gravel that was to to the hotel about Mr. He told didn’t to make his claim. good; answer, M. I it?’ contract. The Corpus conversation are about that kind of fel- is, appellant; He did not tell understood I appellant the case above.. v. going testified; Ucovitch, said: first, and. And Corpus; notes substantially conversation that he was Kenedy co but that know time to that date.” him Mr. two weeks me that ship Christi to and been bro- latter as agent that Kenedy. he ‘That’s not to build- go relies bring judg- what trial, join- then that that who Vic- “He told al- ahe 2 Tex. Pearce v. 26 W. Wallis, lows: “The court erred in not well ment this issue was legations it cannot that his interest undisputed, then the tor the Burns, dence of would law have stitute an upon the claim was much of a common cumstance that weight. charge. Vaugh Bank, he failure actual bona fide consideration edness to der his sought [2] The credit valid,
Notes
[3] circumstance Gunter, S. Bailey guaranteeing Civ. appellant faith. Nor do we think seventh not same suit Civ. 24 S. assignment guaranty. 124 S. the same. The bona fide 618, plaintiff acquired title, taken, good activity If Allen Bailey, the debt 146; App. 314, controlling be said under such petition alleges, Wallis, supra: 26 Tex. that Ira P. necessarily important not, fight W. guarantor. was faith of the a debt he paid sufficient to establish the Cleveland was W. and that said tending Company, petition. 126 W. assigned then 1098; Lyons by transferring S. W. in behalf and it Edrington, to recover the assignment paid by assignment consideration It was cannot avail. As held 496; 85 S. W. 700; entitled to indebted to the effect.” he the claim Bailey, circumstance proof to show consideration. S. W. owed the bank. that Anderson v. Leahy Ortiz, would be held un Turner v. v. claim transaction, “If The was manifestly and denying as a matter Campbell, clearly 824; error is as fol- adduced under relieved who overruled. the fact there was an v. circumstances appellee Bergstrom 404; fact even v. might Daugherty, would dis resident of the claim Pearce paid, composed procured want proof W. 362; Christie this de- that Brooks, bearing serious though indebt Bailey claim, of so made resi pay that con cir are his al no If v. v. (Tes* 26,1909, the local of this cause bar November fendant the Friday jury, de- was week of the term. jury, request this The case was on that called fendant’s defendant called, appellant’s attorney legally when entitled special judge ready The term of the trial of cause.” began go trial, No- which the cáse was tried to a into a court at but wanted a trial before jury, postponed vember and ended December and asked that the case be attorney represented following week, the county, when would there pellant reside in Victoria be a attendance. This county. denied, go October but resided forced to to trial attorney 23, 1909, appellant’s jury; special judge giving wrote to without a attorneys appellee bank, Victoria, ask- that, owing a reason for this action notify setting mail when him return them to other civil cases and the county would postpone- follow, district criminal docket convene, ment, necessarily granted, also when the case result stating trial, it was reached understanding a the continuance the case for the term. While it would follow recites that the trial was enter- named, sug- of gesting which he another ed into on November we think this error, some the two eases be set for the amended particular con- appellant, upon for the mutual for trial which the case was and'