C. H. Allyn & Co. v. P. J. Willis & Bro.

Citations

• 65 Tex. 65
• 1885 Tex. LEXIS 312

Syllabus

<p>1. Continuance—Application.—The granting or refusing of an application for a continuance not in compliance with the statute, lies in the discretion of the court, and its ruling will not be disturbed on appeal, unless it clearly appears that the court below abused its discretion. See statement of case for application for continuance held to be insufficient.</p> <p>2. Jury Fee—Practice.—Defendants demanded a jury and had the cause placed on the jury docket. No jury fee was deposited by or on the first day of the term, and on motion of plaintiffs the cause was stricken from the jury docket, although the jury fee was deposited before the motion was filed. The cause was called in its regular order, and plaintiffs obj eeted to its trial on the ground that all the jury cases had not been disposed of. Held:</p> <p>(1) That the case should not have been stricken from the jury docket (following Gallagher v. Goldfrank, 63 Tex., 473).</p> <p>(2) Plaintiff could not be heard to complain that they were not permitted to reap a further advantage than the erroneous ruling of the court had already-given them.</p> <p>(3) The trial of a case out of its regular order is no ground for reversal unless it is shown that some injury resulted therefrom.</p> <p>3. Sale—Fraud—Rescission.—Where a vendor has been induced to make a sale by the fraud of his vendee, the contract is voidable at the election of the vendor, not void ab initio; the vendor may sue for the price and thus affirm the contract, or sue for the goods and thus disaffirm it. (Benj. on Sales, 433.)</p> <p>4. Same—Inconsistent Actions.—If the vendor has notice of the fraud which entitles him to rescind the sale, and yet institutes an action to recover the value of the goods, he is barred from afterwards bringing an action to rescind the contract of sale. The two actions are inconsistent.</p> <p>5. Same—Vendor—Attachment—Stoppage in Transitu.—The fact that creditors of the vendee have attached the goods, does not defeat the righ