*1 Appeals Reports. Texas Civil legally charg'eable, of the fees and ordinance, expenses constituted the for which wrong release the this animal; may If were made to be true plaintiff sought appear, redress. alone, not be on such facts for the miscon- city liable, and we not holding duct of the mean be understood as officer; not without the evidence before we can see what otherwise. But us, charge say hior can we review so as to there case was. of it portions to authorize a reversal. There are such error it as if erroneous to such facts probably alone, which would be addressed may But the evidence" have shown supposed. others, those above city would have made the quoted, rule of law above which,- prac- or else substantially the instructions liable, tically harmless. without a statement facts. assignment
Ro be considered Affirmed. 7, Company B. Lee. v. Lumber Riverside No. 573. MOTION TO DISMISS.
ON perform 1. Condition of Bond.—A bond conditioned abide and Appeals sufficient; it should also abide of the Court of Civil be conditioned to Leg., April 1892, Supreme Session, 22nd Called Court. Acts chap. art. 1400. Appeal replevy who is a on the 2. Sureties Bond.—One bond good surety appeal is not a on the bond of defendant. in attachment Appeal Insufficient New Bond in Place of an Bond.—Evidence of the sol- presentation vency must be sureties on the new bond at the time of its furnished. will look to the of the clerk of the court below of the same The court made months before. New Bond for Allowed.—"When the condition of bond is may appellant. incorrectly a new bond stated MERITS. THE Correspond.—The petition Allegation and Proof Must averred money merchandise, fendants were indebted for the at their checks, specified “sold to defendants instance items were them traded to Several in favor of use. sold to one of the defendants his individual iff was reversed. as he states it. case 6. Same.—The amount of another. No to aver one state of facts He can not be allowed pleadings authorize the in- a unless the as a basis for suffice troduction of the evidence. Co. v. Lumber
1894-.’] Evidence.—Plaintiff Inadmissible fill the orders of defendants that he would tween himself and *2 re- should be to their the defendants that checks month- that at the first of each defendants money, and plaintiff as ceived in checks, this was done as to account with managing partner admitted and the the account sued support not in excluded, because have evidence should as correct. This petition. allegation proof that the de- Authority.—Without proper averments Partner’s 8. plaintiff by other were due agree those debts which promise and fendants did judgment against de- therefor, to authorize they not be made liable agreement by one of the fendants, must show a powers, or authorized of his undertaking was within that such Hon. M. Tried before Trinity. from below Smither. appellants. 1. Thecourt erred S. L. Robb, Adams & Adams and acknowledged by on were that the checks sued admitting same; just defendant to be good, “wares, merchandise, was a suit because this allegation and under his to defendant,” and delivered were sold and delivered he can that such checks prove, recover, before Jackson, 13 Hall v. 3 Texas, 42; to defendant. Holman v. Criswell, 5 Lubbock, 51 Guess v. Hobby, Texas, 147; v. Seligson Texas, 305; 16 Parker 19 Texas, 399; Beavers, Denison v. v. Texas, 535; League, Texas, pleaded. proven can not form the basis of a Facts Mc- 3 Paul 7 305; Perez, Texas, 338-345; v. v. Jackson, Texas,
Hall 10 Kinney v. Fort, Texas, to correctness Admissions of defendant as Clegg, appellee.
G. O. support of itemized account. admissible as evidence of account are App. 3 Ct. C. sec. 384: C., C. Texas, App. C., 190; 3 Ct. sec. 560; 55 4 sec. App. C., Ct. C. App. C. secs. C., 491, 574; Ct. MOTIONTO DISMISS. to dismiss the The motion GARRETT, Chief ap- but the is well taken; of a case, for the want sufficient to file a sufficient bond. fifteen in which days pellants insufficient, motion is be- reply by them bond tendered is a thereon, one of the sureties B. Bowland, cause W. him as against replevy bond,
fendant’s solvency that evidence the further such; reason, and for furnished should be presentation of the bond time of the at the Appeals Reports. Texas Civil this court. The court will not look to the of the clerk of the court helow of the same sureties made ago. months reply appellants to the motion to dismiss, of the court will be of the bond final, per- the condition form sufficient, of this court alone is correct; plea cause the jurisdic- reconvention is sufficient amount to give tion to the Supreme Court. do not However, we mean to indicate that such condition would be sufficient. May
Delivered
ON THE MERITS. Appellee sued *3 PLEASANTS, appellants for Associate the recovery alleged $640. of an indebtedness of He also out, sued upon property and levied of appellants, an attachment. The was suit upon an itemized verified of account, by plaintiff’s agent. affidavit partners The defendants were under the trade, doing business name of the Riverside Lumber and Company, engaged were cutting, saw- and ing, selling They excepted plaintiff’s lumber. petition by to gen- eral demurrer, excepted and to the also affidavit for the attachment, denial, and further by special answered general and denial as to sev- plaintiff’s eral items of they pleaded and account; reconvention damages the of for alleged sum the $700, wrongful levy of the at- upon tachment property. their
The by cause was tried the judge jury, court without a and judg- ment plaintiff was rendered the for his less a credit allowed debt, himby of something under and for the foreclosure of his attach- $100, petition ment lien. The that the defendants were averred, indebted goods, the specified merchandise, money, account attached to and of part made “and sold petition, plaintiff to defendants at their instance and The given by checks were defendants to their the latter plaintiff were traded to for goods or And several of the items in the account charged as “sold and delivered to the defendant company,” were to one of sold the defendants for his individual of while other such items use; were which had sold and parties delivered to third on subsequently and the debts credit, assumed one member of firm. In support of the averments of his over of petition, objections defend- plaintiff permitted was ants, to an between the plaintiff that the former would fill the orders of latter for goods that money; checks employes should be received as and that at the of plaintiff’s first each month defendants would come to store and have Lumber Co. v. 1894..'] pur- accounting checks; with plaintiff, their did receive from of this agreement, suance in the sued specified the amounts account checks firm did managing of their afterwards and that defendants’ member him and were counted store, when said checks plaintiff’s come to at account was the same time exhibited plaintiff’s said agent, that the samewas then admitted to said defendant, not taken The after counted were being it. upon left counter. lying but were by defendants, from the store ground evidence, to this variance. objected The defendants money charged the checks and petition was, The in the averment delivered defendants.” The ob- in the were “sold and was the court hold- admitted, overruled and the evidence jection was parties. proved objec- account stated between the The ing tion and the evidence so far sustained, rejected, should have been at It is an rule of elementary least it related to items checks. correspond. probata law, allegata proof of his case as it. he states . He aver state of facts another. Ho suffice as a basis for a amount the introduction of the pleadings authorize evidence. averments of also, “goods to prove that certain of the defendants,” sold and delivered parties named in the charged as were sold afterwards, parties own account; said on their the managing *4 promised for company that said partner company defendant goods. making prom- for said The defendant company firm in his ise his did state that was authorized plaint- firm due and others to to bind his for these debts himself the firm did the other member of that he had never testify, while iff; partner authority company, behalf assume, payment these debts. proper averments and thereof,
Without promise did and undertake to debts due to company these iff held liable And therefor. judgment against company, to authorize a promise by one of but it only must not show a within undertaking either show, addition, partner so was au- promising partnership, thorized to so reversed in this pointed opinion,
For the out errors and the cause remanded. and remanded.
Reversed