Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63. Page: 68
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68 ULLMAN, LEWIS & Co. v. BABCOCK. [Galv. Term,
Argument for the appellants.
The court having declared its want of jurisdiction and dismissed
the suit, all subsequent proceedings, including the garnishments, were
dismissed also.
This court having already held that no appeal was taken from
the judgment of dismissal below, that judgment still stands, and
there are no proceedings in the principal suit pending anywhere upon
appeal or otherwise, on which the garnishments can rest or whose
decision they are to abide. The court below having dismissed the
original suit for want of jurisdiction, we see no error in its judgment
dismissing the garnishment, and it is affirmed.
AFFIRMED.
[Opinion delivered January 20, 1885.]
ULLMAN, LEWIS & Co. v. P. S. BABCOCK.
- (Case No. 1910.)
1. MEASURE OF DAMAGES.-The measure of damages for a failure to deliver in
accordance with the contract specific articles is the difference between the
contract price and their value at the time and place when they should have
been delivered. Proof of value at any other time is inadmissible.
2. CONTRACT- AMBIGUITY- DELIVERY.-In 'a written contract between a
wholesale house and a customer for the purchase of specific articles, the following
language occurred descriptive of the thing bought: "15 bbls. T. J.
Monarch $2.50, 1880, laid in Laredo direct from distillery, same as gauger
leaves it." Held:
(1) It was competent to show by parol that it described fifteen barrels of
whisky of the T. J. Monarch brand, manufactured in 1880, at the price of
$2.50 per gallon.
(2) That the words " laid in Laredo, direct from the distillery," bound the
seller to deliver the whisky in Laredo within a reasonable time.
3. HANDWRITING- EVIDENCE.- When it is shown that letters are received by
due course of mail, purporting to be in response to letters mailed to the
party whose name appears to be subscribed to such letters so received, their
genuineness will he presumed, and proof of handwriting will not be required.
4. CONTRACT, RESCISSION OF.- If after the making of an executory contract for
the delivery of goods, the purchaser, who has not paid the contract price,
becomes insolvent, the vendor may refuse to deliver, without being liable
therefor.
APPEAL from Webb. Tried below before the Hon. J. C. Russell.
Showalter &d Nicholson, for appellants, cited: Smithwick v. Andrews,
24 Tex., 488-495; Gilkey v. Peeler, 22 Tex., 669; Kimbro v.
Hamilton, 28 Tex., 560; Garner v. McGowan, 27 Tex., 490-91; Furlong
v. Polly, 50 Am. Dec., 636; Masterson v. Mayor of Brooklyn,
42 Am. Dec., 46, 47, and note 48; Miller v. Mariner's Church, 20 id.,
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28511/m1/92/: accessed May 2, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .