assignment. Having refused to exclude the testimony upon appellant's motion made for that purpose, the denial of this charge was material error. mediately after the fire. In view of the con- fusal is made the basis of appellant's third dition of the evidence as thus pointed out, we would not be authorized to say, as against the ruling of the court, that there was no evidence showing the market value of the piano immediately after the fire, and the assign- [5] It is also assigned that the court erred ment must be overruled. in permitting the witness O. L. Guinn to tes[3] Appellant's second assignment of er- tify that it would cost $25 to $50 to buy or ror is as follows: replace the inner action of upright grand El"The court erred in overruling and in refus- lington pianos, and that it would cost about ing to sustain defendant's motion to exclude $45 to restring an upright grand Ellington from the consideration of the. jury all the testimony of the witness William Weiss as to the piano, and in refusing to sustain appellant's condition of the piano involved on the date of motion to exclude the testimony of said withis examination of same, and the amount it ness that it would cost "about $5 extra to put would take to replace same in the condition it in new tuning pins in an upright Ellington was before the fire, because the evidence clearly showed that such examination was made some piano." Appellant contends and asserts, as 82 months after the fire which damaged the propositions under the several assignments piano, and there was no evidence in the rec-of error complaining of the foregoing rulings ord that the condition of the piano at the time of such examination was the same as it was immediately after the fire, because the evidence of such condition at the time of such examination was too remote to be evidence of the condition of said piano immediately after the fire; all of which is more specifically set out in defendant's bill of exception No. 1." of the court, that there was no evidence showing that either the inner action or the strings or the tuning pins of the piano was damaged by the fire in question. The assignments complaining of the foregoing rulings of the court should, in our opinion, be sus The proposition advanced under this as- tained. Taking the statements of appellant signment is that: "The testimony as to the condition of a chattel of a witness who made an examination of same 82 months after it had been damaged by fire is not admissible upon the issue of the amount of damage occasioned by the fire to show its condition immediately after the fire, in the absence of proof that its condition at the time of such examination was the same as it was immediately after the fire." This assignment must be sustained. Appellant states a correct proposition of law under it, and purports to set forth in support of the assignment all the testimony bearing upon the question raised. This testimony shows that the witness Weiss made an examination of the piano 8 or 82 months after the fire which damaged it, and there appears no evidence whatever showing or tending to show that the piano was in the same condition at the time of such examination as it was immediately after the fire. Without such evidence proof of the condition of the piano at the remote period of 8 or 82 months after the alleged date of its injury for the purpose of showing the extent of the injury to it and the amount of plaintiff's damages in consequence thereof was inadmissible.. In this connection, based upon the condition the piano was in when examined, the witness was permitted to state that it would cost $75 to repolish and place the piano in first-class condition. It not appearing that the condition of the piano at the time it was examined by this witness was the same as it was immediately after the fire, the testimony complained of by appellant should have been excluded. as correctly presenting the evidence offered, there was, as contended by appellant, no evidence showing that either of the parts of the piano to which the testimony objected to related was damaged by the fire alleged to have caused injury to it. There being no such evidence, the admission of the testimony complained of was prejudicial error, and requires a reversal of the case. To correct the errors here referred to the appellant requested the court to charge the jury as fol lows: "There being no evidence in the record in this cause as to what particular parts of the interior of the piano covered by the policy in suit were damaged, you are instructed that the Guinn to testify as to what the cost of replaccourt erred in permitting the witness O. L. ing the 'action,' the cost of restringing same, and the cost of replacing the tuning pins of said piano would be, and you will disregard said testimony in arriving at your verdict." The court refused this charge, and its refusal is assigned as error, upon the ground that there was no evidence in the record that the inner action, strings, or tuning pins were damaged by the fire. There being no such evidence, and the court having erred in admitting the testimony complained of, and having refused to strike it out upon motion of appellant, it was error to refuse the charge. The judgment is reversed, and the cause remanded. San An POSTAL TELEGRAPH CABLE CO. OF TEXAS v. DE KREKKO. (No. 5504.) (Court of Civil Appeals of Texas. tonio. Oct. 13, 1915.) OPINION 1. EVIDENCE 471 CURE BY [4] In addition to its motion to have this testimony excluded, appellant sought by a requested special charge to have it withdrawn from the consideration of the jury. This In an action for rent, where the answer of charge was refused by the court, and its re- a witness, although a portion of it, considered CONTEXT. alone, appeared to be his opinion as to the mean-, if they remained over and above that month ing of certain statements made by a third per- it would mean for them to stay for the year. son, when considered as a whole merely stated The first assignment of error is overruled. what such person had said, its admission was proper. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. 471; Witnesses, Cent. Dig. § 834.] 2. LANDLORD AND TENANT 231-SUBLETCONTRACT SUFFICIENCY OF EVI Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge. Action by George De Krekko against the Postal Telegraph Cable Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed. A. P. Wozencraft, of Dallas, and Cobbs, Eskridge & Cobbs, of San Antonio, for appellant. Engelking & James, of San Antonio, for appellee. MOURSUND, J. Appellee sued appellant in justice's court, alleging that appellant, through its agent, W. E. Herring, leased certain premises from appellee for 11 months, agreeing to pay $15 per month for the use thereof, and that it only paid the sum of $60. Judgment was rendered in favor of plaintiff for $105. An appeal was taken, and the trial resulted in a verdict and judgment in favor of plaintiff for $105, with interest from March 1, 1914. No written pleadings were filed. [1] Appellant complains of the admission of a portion of an answer of the witness G. De Krekko to a cross-interrogatory. When considered alone, this portion of the answer appears to be the opinion of the witness with regard to the meaning of certain statements made by Herring; but, when the entire answer is considered, it is obvious that the witness merely stated what Herring had said, namely, that they (meaning appellant company) would try the lease one month, and [2, 3] By the second assignment of error complaint is made of the overruling of defendant's motion for an instructed verdict; the contention being that the undisputed evidence showed that defendant was to take the space in plaintiff's store for a substation for one month, and that if it paid the first month then defendant was to take such space for the life of plaintiff's lease, and that the evidence showed that the business did not pay for the first month. Defendant's witness Herring did not undertake to testify regarding the terms of the contract made by him with plaintiff. Plaintiff testified on direct examination that Herring said, "I want to take that space for one month with the privilege of one year;" that Herring asked him how long his lease ran, and he told Herring one year, and that Herring then said, "That is satisfactory, and we will take it the same as your lease, if it is satisfactory at the end of the first month." Plaintiff's brother testified that Herring said they would try for one month, and if they continued over and above that month it meant for them to stay for the year. Defendant used and paid for the space for four months, without undertaking to make any other contract. It is true that upon cross-examination plaintiff testified that he understood Herring was trying the business, and that he would take the space for the rest of the lease if the business paid. Upon redirect examination he again testified to the actual language used by Herring, which was in substance that, if the business was satisfactory and they did a good business, he would keep the space during the term of plaintiff's lease. This evidence clearly shows a contract to rent for one month, with an option to extend the contract to cover the term of plaintiff's lease. It shows clearly that defendant could abandon the premises at the end of the month, and the contract would be at an end; but it does not show that it could stay for four months, and then say that it had never become bound, except for one month, but had secretly been a tenant at will. It was never the intention of the parties that, if the business was unsatisfactory, or did not pay, defendant could act as if it was satisfactory, continue its possession, apparently exercise its option to lease for the remainder of plaintiff's term, and then, after four months, say it had never made a contract, except for one month. Under the terms of the contract, by exercising its option to retain the space longer than the month, defendant signified its satisfaction with the business done, and abandoned its right to limit the contract to one month. The court did not err in overruling defendant's motion for an instructed verdict, and the assignment is overruled. [4] The third assignment complains of the refusal of a motion for judgment in favor of defendant notwithstanding the verdict. The court did not err in overruling the motion. If the undisputed evidence had shown the facts set out in the motion, the jury having made findings on the points relied upon by defendant, the court had no power to render judgment in disregard of such findings; its power being limited to setting aside the verdict and granting a new trial. Fant v. Sullivan, 152 S. W. 515. The judgment is affirmed. ABLON v. WHEELER & MOTTER money to pay the other creditors, if the full amount of its claim was secured. Said mercantile company advanced the money, and said creditors were paid their 40 per cent., and J. W. Tobolowsky executed to said mercantile company company his two promissory notes, one for $1,315 and the other for $1,500, the latter signed by Ben Ablon, and the stock of goods of said Tobolowsky was placed in the hands of a trustee for sale to pay off said indebtedness. The note first falling due, $1,315, was paid off, and the other was reduced in amount by payments to about $900, when on October 30, 1911, appellee, successors to Tootle, Wheeler & Motter Mercantile ComMER-pany, brought this suit against J. W. Tobolowsky and Ben Ablon to recover the balance due on the $1,500 note. Tobolowsky was dismissed from the suit, and of which there is no question raised, and Ben Ablon is the only defendant. He pleaded that he signed the note as surety and that he did so with the understanding that the proceeds arising from the sale of the goods placed in the hands of the trustee should be first applied to the payment of the $1,500 note, which was not done; that the note was procured by duress and fraud on the part of the mercantile company, in that they agreed to accept 40 per cent. of their indebtedness, as did the other creditors, but after the meeting of the creditors, and before they would advance the money to pay the other creditors, they required Tobolowsky to secure them in the full amount of their debt, which he did to prevent being forced into banktrial resulted in a judgment against Ablon, and he appeals. 1. PLEADING 258-AMENDMENT OF ANSWER AT TRIAL. There was no error in refusing to permit defendant during the trial to amend his answer by setting up a deed of trust and introducing a new defense based thereon, which would necessitate a continuance to enable plaintiff to meet it; all the facts and circumstances showing that defendant was put on inquiry and had sufficient time to have ascertained the exact condition of affairs, and that if he did not know it it was due to his negligence. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 765-782; Dec. Dig. 258.] 2. TRIAL 250-INSTRUCTIONS - CONFORMITY TO ISSUES. An instruction presenting an issue unauthorized by any pleading, or even by the evidence, is properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 584-586; Dec. Dig. 250.] 3. NEW TRIAL 102-NEWLY DISCOVERED EVIDENCE-DILIGENCE. Defendant is not entitled to a new trial on the ground of newly discovered evidence, a deed of trust, of which the circumstances put him on inquiry. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. 102.] Appeal from District Court, Dallas County; W. F. Whitehurst, Judge. ruptcy. [1] 1. On the trial, after the plaintiff and defendant had both introduced their direct testimony, plaintiff in rebuttal offered in evidence a deed of trust executed by J. W. Tobolowsky to J. J. Tuehy, agent of the mercantile company, conveying the entire stock of merchandise, fixtures, etc., to be held in trust, with power of sale in the usuAction by the Wheeler & Motter Mercan- al course, to keep the property insured, to tile Company against Ben Ablon. Judgment replenish the stock, to pay expenses of runfor plaintiff, and defendant appeals. Af- ning the business, and balance of the profirmed, and motion to certify questions over-ceeds arising from the sales to be applied on ruled. Carden, Starling, Carden, Hemphill & Wallace, Towne Young, Victor H. Hexter, and A. B. Lacy, all of Dallas, for appellant. Short & Feild, of Dallas, for appellee. RAINEY, C. J. In June, 1907, J. W. Tobolowsky was engaged in the mercantile business at McAlester, Okl. Being financially involved, a petition in bankruptcy was filed against him. Tootle, Wheeler & Motter Mercantile Company, one of his creditors, agreed to help him. A convention of the creditors was had, who agreed to take 40 per cent. of their indebtedness in settlement, and said mercantile company agreed to advance the said indebtedness. At this point in the trial defendant claimed that he knew nothing of said deed of trust, and asked leave of the court to amend his answer that he might set up in effect said deed of trust, that it was a security for said note, that the value of said security was in excess of said indebtedness, and that the same had been negligently dissipated by said mercantile company, but for which said note would have been paid off and discharged. The plaintiff objected to the filing of said amendment: "Because said defendant had ample opportunity to obtain said deed of trust if he desired. J. W. Tobolowsky was his codefendant in this action and resided at McAlester, in the state of Oklahoma, as defendant well knew when said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes deed of trust was executed. That it was filed for record on the 10th day of July, 1907, that this suit was brought on the day of 19-, against defendant and J. W. Tobolowsky, and has been pending ever since. That said amendment, if allowed, introduced into the case a new defense, which would necessarily result in a continuance to enable the plaintiff to show that the goods mentioned in the notice were removed from Oklahoma without the plaintiff's knowledge and with the knowledge and consent of the defendant." The court refused to permit defendant leave to file said trial amendment, to which action of the court in refusing defendant leave to amend the defendant then and there duly excepted.. We are of the opinion that the court did not err in refusing to permit appellant to amend his answer as requested. He pleaded that the goods were placed in the hands of a trustee for sale, and that the note was to be paid out of the first proceeds of sale. Said deed of trust was Said deed of trust was properly recorded in Oklahoma. He was a nephew of J. W. Tobolowsky, and B. Tobolowsky, J. W. Tobolowsky's brother, was placed in charge of said goods for the purpose of disposing of the same, and several years elapsed before this suit was brought. All the facts and circumstances, we think, show that appellant was put upon inquiry and had sufficient time to have ascertained the exact condition of affairs; if he did not in fact actually know the true condition, it must be attributed to his own negligence. [2] 2. The court did not err in refusing to give appellant's special charge to the effect to find for him if they believed plaintiff caused the surrender of securities sufficient to pay the said note to J. W. Tobolowsky, or, if not sufficient to satisfy the note, to credit the value of what was turned back on said note. There was no pleading by appellant that authorized the presentation of such an issue. Besides, there is no evidence showing the value of the goods returned to J. W. Tobolowsky. [3] 3. The court did not err in failing to grant appellant's motion for a new trial on the ground of newly discovered evidence, which was the deed of trust introduced by plaintiff, and for which the appellant had asked leave to amend. As above stated, we think there was no just ground for appellant's being surprised, as the circumstances shows put him on inquiry, and our discussion of the question of refusal to allow appellant to amend applies to the question of newly discovered evidence. 4. On the issue pleaded by appellant that he signed said note as security with the understanding that the proceeds of sale of the goods should be first applied to the note here sued on, we will say that there was sufficient evidence to support the jury's verdict that there was no such understanding by the mercantile company or its agent. authorizes the verdict on the question of duress and fraud. There is no error in the charge of the court upon the burden of proof. Finding no reversible error in the record, the judgment is affirmed. On Motion to Certify to Supreme Court. The appellant moves this court to certify this case to the Supreme Court, because in conflict with the opinions of the Courts of Civil Appeals at El Paso and at Ft. Worth. He states in his motion: "This honorable court, through Chief Justice Rainey, in the above cause, on the question of parent of record that the creditor (the appellee principal and surety, held that though it was apin this cause), which was a trustee, and in the possession of securities held for the payment of curities to the principal debtor, and allows him the note sued on, negligently surrenders said seto remove same out of the state, such action on the part of the creditor does not discharge the surety, nor release him pro tanto to the amount of such surrendered security." In the opinion we used no such language that such was not the law. What we held as above set out, nor did we hold or intimate was that there was no pleading presenting such an issue. On the issue pleaded that ap pellant signed the note with the understanding that the proceeds of sale of the goods dence was sufficient for the jury to find should first be applied to the note, the evisigned the note without reference to what against him. We concluded that appellant disposition was made of the goods. The motion is overruled. FOWLER v. CARLISLE. (No. 7388.) (Court of Civil Appeals of Texas. Dallas. Oct. 16, 1915.) 1. SALES 53-REPRESENTATION - FACT OR OPINION-QUESTION OF FACT. was intended by him and understood by the buyWhether a representation made by a seller er as an affirmance of a fact or a mere expression of opinion, in which latter case it, though untrue, is not ground for rescission, is a question of fact for the jury, or for the court exercising his jury function. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 145-151; Dec. Dig. 53.] 2. APPEAL AND ERROR OF ERROR. 731-ASSIGNMENTS the court's conclusions of fact, and which fails Any assignment of error without support in to challenge the correctness of such conclusions, presents no error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. 731.] Error from Wood County Court; R. E. Bozeman, Judge. Action by M. E. Fowler against J. A. Carlisle. Judgment for defendant, and plaintiff Affirmed. brings error. Jones & Jones, of Mineola, for plaintiff in error. Harris & Britton, of Quitman, for de 5. We also think the evidence sustains and fendant in error. RASBURY, J. In the court below plain- I would have purchased them himself, al- [1] The first error assigned, and which, in At the time of the purchase plaintiff in error was accompanied by his father-inlaw, who lived near defendant in error, and had known the mules all their lives, examined them at the time of the purchase, and "As we understand the law upon the subject, if the representations made by the seller were of an opinion, then the seller is not liable, alintended and understood as the mere expression though the representations may have been untrue. But when the representations, in whatever language they may be couched, are intended and understood as the affirmation of a fact material to the transaction, and the purchaser relies upon them as true, the seller will be held |