McKinney v. Andrews

• Decision Date: 01 January 1874
• Citation: 41 Tex. 363
• Parties: EMILY MCKINNEY, ADMINISTRATRIX, v. W. T. ANDREWS.
• Court: Texas Supreme Court

41 Tex. 363

EMILY MCKINNEY, ADMINISTRATRIX,

v.W. T. ANDREWS.

Supreme Court of Texas.

1874.

APPEAL from Harrison. Tried below before the Hon. J. B. Williamson.

H. McKay, for appellant.

No brief for appellee came to hands of the reporters.

MOORE, ASSOCIATE JUSTICE.

While a number of the interrogatories propounded to his witnesses by appellee, which were excepted to by appellant upon the ground that they were leading, are not, in our opinion, liable to this objection, because they merely led the witnesses to the subject of inquiry, yet it is quite evident, on looking at the bill of exceptions, appellant's objection to several of them on this ground was well taken; and, therefore, the ruling of the court in this particular, if no other, would require a reversal of the judgment. But as there is apparent in the record an error in the judgment in favor of the appellee which goes to the foundation of his defense, upon which it is obvious, from an inspection of the record, the verdict and judgment of the District Court was in his favor, it is unnecessary for us to advert to each one of the many interrogatories to which this objection was made, and particularize those as to which it should have been overruled and those as to which it should have been sustained.

Appellant by her suit seeks to recover the value of a wagon and five yoke of steers, which she alleges was hired by appellant from her intestate for the purpose of hauling cotton from the county of Grayson to San Antonio, and which, as she avers, appellee undertook and promised, the wear and tear excepted, to return to her intestate, or, in case of failure to do so, to account for the use and reasonable value of the same.

Appellee answered by, first, general demurrer; second, general denial; third, payment; fourth, that said wagon and team were used with the knowledge and consent of appellant's intestate for the purpose of transferring cotton for the Confederate States from the interior of the State to San Antonio, to be there exchanged for powder, lead, and other munitions of war, to be used in carrying on war against the United States; and, fifth, that said wagon and team were taken out of his possession by military force, by command of a quartermaster of said Confederate States, and sent to Eagle Pass on the Rio Grande.

It is evident from the instructions given the jury the case turned in the court below upon one or the other of the last two of these answers. And although the fact of impressment alleged in the last of them seems sufficiently established by the witnesses for appellee, except for the objectionable character of some of the interrogatories propounded to them for this purpose, yet as appellee admitted that he had sold the wagon and team, and promised to pay for them, it cannot...