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letter, prompted its dissemination. The inference of malice was permissible. Bradstreet Co. v. Gill, 72 Tex. 121, 9 S. W. 753; Holt v. Parsons, 23 Tex. 21; Behee v. Railway Co., 71 Tex. 428, 9 S. W. 449.

In cases of slander and libel the question of exemplary damages is largely in the discretion of the jury. The exemplary damages allowed in this case would, in some instances, be rejected, as out of proportion to the amount of actual damages. Willis v. McNeill, 57 Tex. 478; International & G. N. Ry. Co. v. Telephone & Tel. Co., 69 Tex. 281, 5 S. W. 517. But there is and can be no fixed ratio as to such damages. The exemplary damages assessed are not so large as to appear unjust, or as indicating prejudice or passion, and we will not interfere with the discretion exercised by the district judge. The judgment will be affirmed.

PELL et al. y. CHANDOS. (Court of Civil Appeals of Texas. June 6,



1. Where the owner of land makes an executory contract to convey when one-half the price is paid, in monthly installments, and the vendee makes default, the owner may declare a forfeiture and sue to recover the land.

2. Where the vendee shows no excuse for failure to pay the installments, and does not tender the amount due, there is no equitable reason why the court should interfere with the forfeiture.

3. Where the purchaser did not offer in the pleadings to pay the sum due on the contract, it was not error for the judge to refuse a tender made in open court after the closing of the argument.

Appeal from district court, Bexar county; W. W. King, Judge.

Trespass to recover land by Jane Chandos against A. W. Pell and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. D. Childs, for appellants. Berry & Culberson, for appellee.

their answer they made no tender of any sum or sums of money whatsoever. The case was tried before the court without a jury, and judgment rendered in favor of appellee for the land as prayed for, and this appeal is prosecuted from said judgment.

The court below filed its conclusions of facts, which are supported by the record, and are adopted by this court as its conclusions. They are as follows: "(1) That Mrs. Jane Chandos, the plaintiff herein, was on the 18th day of May, 1893, the owner in fee simple of the property in controversy. (2) That on that day there was made, executed, and delivered by her the following instrument in writing: 'Know all men by these presents, that I, Jane Chandos, have this day sold to Jno. Wilson and A. W. Pell lot six and twenty feet off of the east side of lot five, block eighteen, old city lot No. one, range No. two, division No. 2, on the north side of Hood street, on Government Hill, and knowli on the city map as "Maverick's Addition No. Four," in the city of San Antonio, Bexar county, Texas, for the consideration of eleven hundred dollars, $25 of which is to be paid down, and $15 are to be paid each and every month until the whole is paid; and, when one-halt of the purchase money is paid and indorsed on this contract by myself or my agent, I agree to make a deed to the above property, reserving a vendor's lien for the balance of the purchase money. The taxes are now paid to date, and all subsequent taxes on lot six and one-half on lot five are to be paid by said Wilson and Pell. The payments are to be made on the 15th of each and every month, and, if more than thirty days run after any payment is due, it shall draw 10% interest. Each party agrees to execute faithfully the above contract. Dated May 18th, 1893. [Signed] Jane Chandos. A. W. Pell. John Wilson.' And that, under and by virtue of the same, the defendants took possession of the premises in controversy, and were so holding the same at the date of the institution of this suit. (3) That defendants paid to plaintiff, on the contract mentioned above, the following sums of money, to wit: $25, due on May 18, 1893; $15, due on June 15, 1893; $15, due on July 15, 1893; $15, due on August 15, 1893; $7.50, of the $15 due on September 15, 1893; and on or about the 4th of October, 1893, $2.25, as interest. That the payments due May 18th and June 15th were made on the due dates of the same, but that the other payments were not made at the time agreed upon, but thereafter. (4) That Mrs. Jane Chandos, the plaintiff herein, is an ignorant and unlettered woman, and signed the receipt for the $2.25 interest on the assurance of the defendant Pell, and in the belief that they were receipts for interest due on the installments that were paid, but not paid on the agreed dates, and that she did not sign the same as receipts for the unpaid sums due on September 15 and October 15, 1893. (5) That Mrs. Chandos, the plaintiff,


NEILL, J. The appellee, plaintiff below, brought this suit in the ordinary form of an action of trespass to recover from appellants, defendants below, lot No. 6, and 20 feet off the east side of lot No. 5, in block 18, in what is known as “Maverick's Addition No. 4 to the City of San Antonio." The appellants pleaded not guilty, and specially that they were lawfully in possession of the property, having been put in possession thereof by appellee on May 18, 1893, by virtue of a contract or agreement between appellee and themselves; and that they had, subsequent to that time, paid divers sums of money to appellee on account of same, and were willing, and had always been willing, to pay the installments of money as they fell due. But in

ey, and render judgment for them at the last moment. If the appellants, after making de fault on their contract, could have avoided its consequence by a tender of performance after suit was brought for its rescission, they must have offered in their pleadings to perform all its stipulations on their part. Pom. Spec. Perf. 363. In this case there was no offer in appellants' pleadings to pay the money due on their contract, and without such offer they could not, when the judge was announcing his decision in the case, avail themselves of a tender by a verbal offer to “bring the money into court, if it would be accepted."

There was no error in the court's overruling appellants' motion for a new trial. If appellants could not hear and understand the testimony of plaintiff contradicting the recitals in the receipts, they should have requested the court to compel her to testify so they could hear and understand her; and if they failed to do so, and risked their case on testimony they did not hear, it was their own fault, and they were not entitled to a new trial after they understood the import of the testimony, for the purpose of enabling them to introduce evidence in its contradiction. There is no error requiring a reversal of the judgment, and it is affirmed.

demanded the sums due by virtue of the contract on September 15 and October 15, 1893, after the maturity thereof, which demand was not complied with by the defendants, or either of them. (6) That the defendants have not shown any equitable considerations in excuse of their failure to comply with the terms of the contract, and that they have not tendered to the plaintiff or into court the sums sbown to be due, or any part thereof, on said contract.” Conclusions of law: "(1) That the contract under which defendants claim is made to depend, in order to vest title in them to the property in controversy, upon a condition precedent, which is that certain sums of money shall be paid by them at certain specified times, and that, such condition precedent having been breached by a failure to make the payments as agreed, the plaintiff had the right to declare a forfeiture, and sue to recover the property described in the contract to convey, and that this court cannot relieve against the forfeiture so incurred. Moore v. Giesecke, 76 Tex. 550, 13 S. W. 290; 1 Pom. Eq. Jur. $ 455. (2) That the defendants, holding under an executory contract of sale, not having tendered into court or to the plaintiff the whole amount of the purchase money agreed upon in said contract, nor the amount due on this contract at the date of the institution of this suit, and not having shown any equitable considerations in excuse of their neglect to pay the said sums at the due date thereof, have no standing to be relieved against a forfeiture of the contract of sale. Pom. Spec. Perf. $ 379."

Our concurrence with the trial judge in the foregoing conclusions, of fact and law disposes of appellants' first and fourth assignments of errors. In this case the plaintiff was not shown to have been in default. Defendants were in default, and there were no payments made after default which were of any consequence, and there is an absence of any equitable considerations in favor of defendants wbich would induce a court of equity to deny plaintiff the remedy of recovering the land. See Moore v. Giesecke, supra.

On the trial of the cause, appellants (defendants below), after the argument had closed, the judge, in delivering his opinion, stated that nothing but an actual tender in court of the money which appellants had defaulted in payment of would save them from appellee's right of forfeiture, wherefore appellants, in open court, immediately offered to bring the money into court, if it would be accepted, which the court refused to do unless appellee would waive the time of the tender; and, the counsel for appellee having objected, upon the ground that such tender was too late, and the objection being sustained, an exception was reserved by appellants to the ruling, which is made the basis of their second assignment of errors. Under this assignment, appellants contend that it was the duty of the court to accept the mon


et al. (Court of Civil Appeals of Texas. Dec. 15,


1. Where defendant had attached plaintiff's mill and certain flour sacks, cordwood, and other personalty, plaintiff not having been de prived of the use and occupation of the milli and machinery, their value is immaterial on. the question of damages for the seizure of the personalty.

2. Defendant bank having pleaded as set-off the judgment recovered in the attachment suit, plaintiff could show that, before said judgment was rendered, defendant had made a collection for account of plaintiff, and had applied enough of the proceeds to said judgment to pay it in: full, and did not in its statements reckon said judgment as an existing claim.

3. The court having charged the jury that they might set off said judgment against any damages they might find for plaintiff, a verdict for defendant does not show that the exclusion of evidence of payment of said judgment was harmless.

4. A judgment obtained in another than the attachment suit cannot be set off against damages claimed for a wrongful attachment.

Appeal from Johnson county court; J. M. Hall, Judge.

Action by the Imperial Roller Milling Company against the First National Bank of Cleburne and another for damages for wrongful attachment. Judgment for defendants. Plaintiff appeals. Reversed.

Henry & Green and Bledsoe, Patton & Brown, for appellant. Crane & Ramsey, for appellees.

LIGHTFOOT, C. J. This suit was brought admitted. That judgment is set up by ap by appellant against appellees for actual pellees in this case as an offset against any and vindictive damages for wrongfully and damage which appellant may obtain, and maliciously suing out a writ of attachment, the court charged the jury upon that issue. and causing the same to be levied upon the This judgment was obtained in the suit out plaintiff's mill property and a large number of which the attachment was issued, and it of flour sacks, 50 cords of wood, and other was not improper to show by defendants' personal property. Defendants, after gen- own officers that the judgment had been eral answers, pleaded specially, in offset of paid, and was no longer available as an offany judgment plaintiff might be able to ob- set. The attachment was sued out Decemtain, two certain judgments,-one for $299.33, ber 6, 1887, and at the time of said suit they in favor of the First National Bank of Cle- held for collection the $440 acceptance on burne against appellant, in the county court Grathouse, which was placed there Decemof Johnson county, dated January 13, 1888; ber 1, 1887, for collection. This acceptance, and the other for $831, in favor of B. H. it was claimed, was collected by the bank Sanders against said appellant, dated De- December 26, 1887, and it obtained judgment cember 8, 1890, and transferred to said bank, in the attachment suit against appellant Janand alleging the insolvency of said plaintiff uary 6, 1888. There was some conflict in (appellant). The plaintiff below claimed that the testimony as to the purpose for which the first-named judgment had been settled; this Grathouse acceptance was placed in the that appellant had placed in the hands of the bank. W. D. Stratton, president of the roller bank for collection an acceptance on one of milling company, testified as follows: "I its customers for about $440, which was col- instructed the bank to apply the proceeds of lected by the bank December 26, 1887, and this acceptance to the payment of the $500 a part of the proceeds applied, as directed, note, then about due. These instructions to the payment in full of said $299.33 debt; were given about December 2, 1887." The that, in the suit of B. H. Sanders against attachment was sued out on December 6, appellant, said acceptance for about $440 1887, upon the balance due upon an account was pleaded by appellant as an offset; and for an overdraft; and, if the acceptance was that it was alleged and shown ic said cause there as security for a different debt, its subthat a part of said acceptance had been used sequent application to this claim, long after in the payment of said $299.33 debt, leaving the attachment suit had been brought, could a balance in the hands of said bank of about in no way effect the question of damages for $140, which had never been paid or account- the wrongful suing out of such attachment, ed for to him. There was a verdict and judg- and the testimony of Heath, which was exment for appellees, from which this appeal cluded, was not admissible upon that issue. was taken.

But it was admissible, upon the issue made 1. We do not think the court erred in refus- by the pleading, to prove the settlement of ing the special charge No. 1, asked by appel- the county court judgment, pleaded by delant, for the reason that the charge of the fendants as an offset. It is insisted by apcourt below upon the subject of actual dam- pellees' counsel that even if the exclusion age was sufficient, and covered all that por- of this testimony was erroneous, inasmuch tion of such special charge asked which as appellant was not awarded any damages should have been given. There was testi- to be offset by it, the error was harmless. mory tending to show that the mill and lots But this position is not tenable. The court were the property of Stratton. The use and instructed the jury that, if they found for occupation of the mill and machinery were the appellant a verdict for any damage, it not taken from appellant, and their value could be set off against this county court could not form the correct measure of dam- judgment. There was a verdict against apage for the seizure of cord wood, flour sacks, pellant, and we cannot say how it was etc.

reached. 2. The sixth assignment of error complains 3. Almost the same question as the above of the ruling of the court in excluding cer- is attempted to be raised in a different form tain testimony of E. M. Heath, vice president under appellant's second assignment of error. of the bank, whereby appellant sought to In reply to the answer of defendants, pleadprove that, before the rendition of the judg. ing the two judgments as a set-off in this ment in the county court in the case of said case, the plaintiff (appellant) pleaded, in bank against appellant for $299.33 (which substance, that these two judgments reprewas on the 6th day of January, 1888), the sent in a different form the overdraft and Grathouse acceptance for about $440, placed notes due by plaintiff to defendant at the by appellant with such bank to collect, had time of the attachment; that there was a been collected by it; that a sufficiency of the controversy between the parties, at the time money had been applied to the payment of the $831 judgment was obtained in the disthis debt, and that the debt had been ex- trict court, as to the proper application of tinguished; and that said bank, in making the $440 acceptance (on Grathouse), the statements of its business, did not claim plaintiffs contending that it was to be apsaid judgment as being an outstanding debt, plied to the $300 note, and the defendant due to it. This testimony should have been there successfully maintaining that it was properly applied, first, to the settlement of ed and delivered to the agent of appellant at the eounty court judgment, and the balance, Bonham, Tex., on April 9, 1890: "Mr. Neighabout $141, to the note, and it was so ap- bors is very sick. Will probably not live plied; and prayed that defendant be re- 24 hours. [Signed] B. Saunders." Mr. quired to cancel the county court judgment, Neighbors was the father of F. P. Motley, attempted to be pleaded as an offset in this and she was the wife of E. U. Motley. Apsuit. The defendants demurred to this plea, pellant demurred generally and specially, and and the same was sustained to all "except as pleaded general denial, and also filed special to the plea of the payment of the county pleas. The demurrers were overruled, a tria! court judgment therein described." This had, and judgment rendered for Mrs. F. P. left in issue the very question for which Motley, from which this appeal is prosecutappellant contends in its second assignment, ed. and we can find no material error in this rul

Conclusions of Fact. ing. 4. The judgment for $831 in the district

Plaintiffs' petition alleged that F. P. Motcourt did not grow out of the same transac

ley was the wife of E. U. Motley, and tion, and could not properly be set up as an

daughter of Nathan Neighbors, the one menoffset in this case. Rev. St. arts. 649, 650;

tioned in the telegram sent, which telegram Riddie v. McKinney, 67 Tex. 29, 2 S. W. 748;

is as follows: "Bonham, Texas. April 9th, Carothers v. Thorp, 21 Tex. 358. The other 1890. E. U. Motley, c/o J. C. & W. W. Witherquestions raised will probably not arise on

spoon, Smith's Grove, Ky. Mr. Neighbors is another trial. For the errors of the court very sick. Will probably not live 24 hours. above indicated, the judgment is reversed

B. Saunders.” That said telegram was deand the cause remanded. Reversed and re- livered to appellant's agent on said 9th day manded

of April, 1890, by B. Saunders, who prepaid the charges for sending same, and then told said agent of the importance of said message

and the relation existing between F. P. MotWESTERN UNION TEL. CO. 5. MOTLEY | ley and E. U. Motley and Neighbors. And et al.

also alleged the negligence of said company (Court of Civil Appeals of Texas. Jan. 31, in failing to deliver the same, and that by 1894.)

reason thereof said F. P. Motley was deTELEGRAPI COMPANIES DELAY IN DELIVERING prived of being at her father's funeral, which MESSAGE - LIABILITY TO WIFE OF ADDRESSEE

caused her mental pain, suffering, and disDAMAGES. 1. Where a telegram is addressed to a hus

tress. Defendant company's special demurband, announcing the impending death of his

rers relied on were: “(3) It does not appear wife's father, and the operator is informed of from said petition that there was any damthe relationship of the parties and the im

age to said F. P. Motley contemplated by the portance of the message, the wife may recover damages of the telegraph company for delay

parties to the contract set up in said petias if the message had been addressed to her. tion that might occur on account of any de

2. In an action against a telegraph com- lay in the transmission and delivery of said pany for delay in delivering a message an

message. (4) It does not appear from said nouncing the sickness of plaintiff's father, and his probable death within a short time, it ap

petition that the defendant had notice, when peared that plaintiff could not have reached her said contract was entered into, that the father's home in time to attend the funeral funeral of Nathan Neighbors would be postwhen it occurred if the message had been duly delivered. Held, that plaintiff could recover for

poned to await the arrival of plaintiffs. (5) injury to her feelings on the ground that, if she

It does not appear that there was any conhad received the message promptly, she would tractual relations between defendant and have answered that she was coming, and the

said F. P. Motley." The telegram reached funeral would have been postponed to enable her to attend it.

Smith's Grove, Ky., on the night of April 9,

1890. No effort was made to deliver it to Appeal from district court, Fannin county.

E. U. Motley, nor to J. C. & W. W. WitherAction by E. U. and F. P. Motley against

spoon. The Witherspoons did business about the Western Union Telegraph Company to

three or four hundred yards from the comrecover damages caused by delay in deliver

pany's office at Smith's Grove, and were ing a telegram. From a judgment in favor

well known to the company's operator at of plaintiff F. P. Motley, defendant appeals.

said place. E. U. Motley and wife lived Affirmed.

about 10 miles from the said station. Nathan W. W. Wilkins and Walton & Hill, for ap- Neighbors died on April 10, 1890. If said pellant Evans & Evans, for appellees. telegram had been promptly delivered, plain

tiff F. P. Motley could and would have seRAINEY, J. This is an action instituted cured a postponement of the funeral, and by the appellees against the appellant in the would have been present thereat. But, by district court of Fannin county, for damages the negligence of the company's employes in for mental suffering caused by delay in the not delivering said telegram, she was de transmission and delivery of a telegram ad- | prived of being present at the funeral, which dressed to E. U. Motley, care of J. C. & W. caused her mental anguish. Nathan NeighW. Witherspoon, at Smith's Grove, Ky., dat., 1 bors, the one mentioned in the message, was the father of F. P. Motley, and F. P. Motley | facts of this case, and no material error was was the wife of E. U. Motley. This relation committed by the court in the premises: was disclosed to the company's agent at Bon- 4. There is no question but what the comham when the message was delivered by Dr. pany was negligent in failing to deliver the Saunders for transmission. Said agent was telegram. The evidence is amply sufficient told the importance thereof and the necessity to warrant the judgment rendered, and the of its immediate delivery, and was informed same is affirmed. that the message was for the benefit of F. P. Motley. Conclusions of Law.

WESTERN UNION TEL. CO. V. MOTLEY 1. There was no error in overruling de

et al. fendant's special demurrers. The allegations (Supreme Court of Texas. May 24, 1894.) of the petition show that at the time the TELEGRAPH COMPANIES DELAY IS DELIVERING message was delivered by Dr. Saunders to MESSAGE-DAMAGES—WHEN Too REMOTE — AP

PEAL-HARMLESS ERROR. the company's operator at Bonham, the agent

1. Where, in an action against a telegraph was informed of the relation plaintiffs bore

company for delay in delivering a message, the to Nathan Neighbors, and of the importance evidence of defendant's negligence is conclusive, of the message, from which the interest of no injury could result to it even if the charge

had the effect to authorize a verdict against it F. P. Motley in the message was made ap

without regard to the question of its negligence. parent. It being disclosed to the agent 2. In an action against a telegraph company that F. P. Motley was interested in the for delay in delivering a message announcing speedy delivery of the message, she is

the sickness of plaintiff's father, and his imentitled to recover in the

pending death, it appeared that plaintiff would same manner

not have had time to be present at the funeral as if the message had been directed to if the message had been duly delivered. Held, her. As a general rule, all beneficiaries of a that plaintiff could not recover for injury to her contract are entitled to the damages that

feelings on the ground that, if she had received

the message promptly, at her request the fuflow from the breach thereof. A different

neral would have been postponed to enable her rule applies, however, where the beneficiary to attend it. 27 S. W. 51, reversed. Telegraph is not disclosed in the making of the contract,

Co. v. Linn (Tex. Sup.) 26 S. W. 490, followed. and the damages sought to be recovered were Error from court of civil appeals of fifth such as were not reasonably within the con- supreme judicial district. templation of the parties when the contract Action by E. U. and F. P. Motley against was entered into. In this case Mrs. Motley's the Western Union Telegraph Company to reinterest was disclosed, and the damages al- cover damages caused by delay in delivering leged to have been sustained by her were,

a telegram. There was a judgment of the under the law, in contemplation of the com- court of civil appeals (27 S. W. 51) affirming pany at the time of making the contract. a judgment for plaintiffs, and defendant The special demurrers 3 and 5 were properly

brings error. Reversed. overruled.

W. W. Wilkins and Walton & Hill, for 2. In plaintiff's petition it was alleged, in plaintiff in error. Evans & Evans, for desubstance, that, if the message had been de- fendants in error. livered in time, she could and would have attended the funeral, and, if she had been de- BROWN, J. This action was instituted by layed for any reason, the funeral would have the defendants in error against the plaintiff been postponed to a wait ber arrival. The in error in the district court for Fannin counobjection to this is that at the time of mak- ty for damages for mental suffering caused ing the contract no notice was given in refer- by delay in the transmission and delivery of ence to postponing the funeral in case she a telegram addressed to E. U. Motley, care of was delayed in arriving in time. It was not J. C. & W. W. Witherspoon, at Smith's Grove, necessary to give such notice to the company. Ky., dated and delivered to the agent of apIt is not unreasonable that a funeral would be pellant at Bonham, Tex., on April 9, 1890, postponed in such a contingency, and whether reading: “Mr. Neighbors is very sick. Will or not in any given case it would be unrea- probably not live 24 hours. [Signed] B. sonable is to be left to the discretion of the Saunders." Mr. Neighbors was the father of jury trying the case; and the law will pre- F. P. Motley, and she was the wife of E. U. sume the parties contemplate such a state Motley. The appellant demurred generally of case when they make a contract to trans- and specially to appellees' petition. The demit and deliver a message of the character murrers were overruled. Appellant pleaded of the one under consideration. The fourth the general denial. A trial was had before demurrer was, therefore, properly overruled. a jury on March 1892, which resulted

3. Several assignments of error complain in a verdict and judgment for the appellees of the charge of the court, and of the failure for $500. Appellant moved for a new trial of the court to give certain special charges without success, gave notice of appeal, filed asked by appellant. After a careful investi- appeal bond and assignment of errors, and gation, we are of opinion that the charge the cause is brought to this court by appeal given was sufficiently full and comprehensive for reversal upon errors assigned. The petito embrace all that was necessary under the • tion in this case alleged explicitly the sending

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