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Tex.)

POSTAL TELEGRAPH CABLE CO. OF TEXAS Y DE KREKKO

525

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, assignment. Having refused to exclude the we would not be authorized to say, as against testimony upon appellant's motion made for the ruling of the court, that there was no evi-that purpose, the denial of this charge was dence showing the market value of the piano material error. immediately after the fire, and the assign [5] It is also assigned that the court erred ment must be overruled.

in permitting the witness 0. 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 872 months after the fire which damaged the propositions under the several assignments piano, and there was no evidence in the rec- l of error complaining of the foregoing rulings ord that the condition of the piano at the time of the court, that there was no evidence immediately after the fire, because the

evidence showing that either the inner action or the of such condition at the time of such examina- strings or the tuning pins of the piano was tion was too remote to be evidence of the con- damaged by the fire in question. The assigndition of said piano immediately after the fire; all of which is more specifically set out in de- ments complaining of the foregoing rulings fendant's bill of exception No. 1."

of the court should, in our opinion, be susThe proposition advanced under this as- tained. Taking the statements of appellant signment is that:

as correctly presenting the evidence offered, “The testimony as to the condition of a there was, as contended by appellant, no evichattel of a witness who made an examina- dence showing that either of the parts of the tion of same 842 months after it had been dam- piano to which the testimony objected to reaged by fire is not admissible upon the issue of the amount of damage occasioned by the fire lated was damaged by the fire alleged to to show its condition immediately after the fire, have caused injury to it. There being no in the absence of proof that its condition at such evidence, the admission of the testimony the time of such examination was the same as complained of was prejudicial error, and reit was immediately after the fire."

quires a reversal of the case. To correct the This assignment must be sustained. Ap

errors here referred to the appellant repellant states a correct proposition of law quested the court to charge the jury as folunder it, and purports to set forth in support

lows: of the assignment all the testimony bearing

“There being no evidence in the record in upon the question raised. This testimony this cause as to what particular parts of the shows that the witness Weiss made an ex- interior of the piano covered by the policy in amination of the piano 8 or 812 months after suit were damaged, you are instructed that the the fire which damaged it, and there appears Guinn to testify as to what the cost of replac

court erred in permitting the witness 0. L. no evidence whatever showing or tending to ing the 'action, the cost of restringing same, show that the piano was in the same condi- and the cost of replacing the tuning pins of said tion at the time of such examination as it piano would be, and you will disregard said

testimony in arriving at your verdict.' was immediately after the fire. Without such evidence proof of the condition of the

The court refused this charge, and its repiano at the remote period of 8 or 842 months fusal is assigned as error, upon the ground after the alleged date of its injury for the that there was no evidence in the record that purpose of showing the extent of the injury the inner action, strings, or tuning pins were

There being no such to it and the amount of plaintiff's damages damaged by the fire. in consequence thereof was inadmissible.. In evidence, and the court having erred in adthis connection, based upon the condition the mitting the testimony complained of, and piano was in when examined, the witness having refused to strike it out upon motion was permitted to state that it would cost $75 of appellant, it was error to refuse the to repolish and place the piano in first-class charge. condition. It not appearing that the condi

The judgment is reversed, and the cause tion of the piano at the time it was examined remanded. by this witness was the same as it was immediately after the fire, the testimony com

POSTAL TELEGRAPH CABLE CO. OF plained of by appellant should have been ex

TEXAS v. DE KREKKO. (No. 5504.) cluded.

San An[4] In addition to its motion to have this (Court of Civil Appeals of Texas.

tonio. Oct. 13, 1915.) testimony excluded, appellant sought by a re

OPINION

CURE BY quested special charge to have it withdrawn 1. EVIDENCE Cw471 –

CONTEXT 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-la witness, although a portion of it, considered

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.

[2, 3] By the second assignment of error [Ed. Note. For other cases, see Evidence, complaint is made of the overruling of deCent. Dig. $8 2119-2185; Dec. Dig. Om 471 ; fendant's motion for an instructed verdict; Witnesses, Cent. Dig. 8 834.] 2. LANDLORD AND TENANT 231-SUBLET- Idence showed that defendant was to take

the contention being that the undisputed eviTING CONTRACT SUFFICIENCY OF EviDENCE.

the space in plaintiff's store for a substation In an action for rent, evidence held to show for one month, and that if it paid the first that defendant, through its agent, made a con- month then defendant was to take such tract to subrent the premises for one month, with an option to extend the contract to cover | space for the life of plaintiff's lease, and that the term of plaintiff's lease.

the evidence showed that the business lid [Ed. Note.-For other cases, see_Landlord and not pay for the first month. Defendant's Tenant, Cent. Dig. 88 926-934; Dec. Dig. Om

witness Herring did not undertake to testify 231.]

regarding the terms of the contract made by 3. LANDLORD AND TENANT Om80_OPTION TO SUBLET PERFORMANCE.

him with plaintiff. Plaintiff testified on diWhere premises were sublet for one month, rect examination that Herring said, "I want with the option, if satisfactory to extend the to take that space for one month with the time of occupancy to one year, the term of the privilege of one year;" that Herring asked tenant's lease, the sublessee, by retaining the space longer than a month, signified its satisfac- him how long his lease ran, and he told Hertion, and abandoned its right to limit the con- ring one year, and that Herring then said, tract to such period.

"That is satisfactory, and we will take it [Ed. Note. For other cases, see Landlord and the same as your lease, if it is satisfactory Tenant, Cent. Dig. $$ 254-257;. Dec. Dig. Om 80.]

at the end of the first month.” Plaintiff's 4. JUDGMENT 199 – JUDGMENT NON OB-brother testified that Herring said they STANTE V'EREDICTO.

would try for one month, and if they continuThe court had no power to render judg

ed over and above that month it meant for ment in disregard of the jury's findings; its power being limited to setting aside the verdict them to stay for the year. Defendant used and granting new trial.

and paid for the space for four months, with[Ed. Note. For other cases, see Judgment, out undertaking to make any other contract. Cent. Dig. $$ 367–375; Dec. Dig. Omw199.] It is true that upon cross-examination

Appeal from Bexar County Court for Civil plaintiff testified that he understood Herring Cases; John H. Clark, Judge.

was trying the business, and that he would Action by George De Krekko against the take the space for the rest of the lease if Postal Telegraph Cable Company of Texas. the business paid. Upon redirect examinaJudgment for plaintiff, and defendant ap- tion he again testified to the actual language peals. Affirmed.

used by Herring, which was in substance A. P. Wozencraft, of Dallas, and Cobbs, that, if the business was satisfactory and Eskridge & Cobbs, of San Antonio, for ap- they did a good business, he would keep the pellant. Engelking & James, of San Antonio, space during the term of plaintiff's lease. for appellee.

This evidence clearly shows a contract to

rent for one month, with an option to extend MOURSUND, J. Appellee sued appellant the contract to cover the term of plaintiff's in justice's court, alleging that appellant, lease. It shows clearly that defendant could through its agent, W. E. Herring, leased cer

abandon the premises at the end of the tain premises from appellee for 11 months, month, and the contract would be at an end; agreeing to pay $15 per month for the use but it does not show that it could stay for thereof, and that it only paid the sum of four months, and then say that it had never $60. Judgment was rendered in favor of become bound, except for one month, but had plaintiff for $105. An appeal was taken, and secretly been a tenant at will. It was never the trial resulted in a verdict and judgment the intention of the parties that, if the busiin favor of plaintiff for $105, with interest ness was unsatisfactory, or did not pay, defrom March 1, 1914. No written pleadings

No written pleadings fendant could act as if it was satisfactory, were filed.

continue its possession, apparently exercise [1] Appellant complains of the admission its option to lease for the remainder of plainof a portion of an answer of the witness G. tiff's term, and then, after four months, say De Krekko to a cross-interrogatory. When

When it had never made a contract, except for one considered alone, this portion of the answer month. Under the terms of the contract, by appears to be the opinion of the witness exercising its option to retain the space lonwith regard to the meaning of certain state- ger than the month, defendant signified its ments made by Herring; but, when the en- satisfaction with the business done, and tire answer is considered, it is obvious that abandoned its right to limit the contract to the witness merely stated what Herring had one month.

one month. The court did not err in oversaid, namely, that they (meaning appellant ruling defendant's motion for an instructed company) would try the lease one month, and / verdict, and the assignment is overruled.

Tex.)

ABLON v. WHEELER & MOTTER MERCANTILE CO.

527

[4] The third assignment complains of the money to pay the other creditors, if the refusal of a motion for judgment in favor full amount of its claim was secured. Said of defendant notwithstanding the verdict. mercantile company advanced the money, The court did not err in overruling the mo- and said creditors were paid their 40 per tion. If the undisputed evidence had shown cent., and J. W. Tobolowsky executed to said the facts set out in the motion, the jury hav- mercantile company his two promissory ing made findings on the points relied upon notes, one for $1,315 and the other for $1,500, by defendant, the court had no power to ren- the latter signed by Ben Ablon, and the stock der judgment in disregard of such findings; of goods of said Tobolowsky was placed in its power being limited to setting aside the the hands of a trustee for sale to pay off verdict and granting a new trial. Fant v. said indebtedness. The note first falling due, Sullivan, 152 S. W. 515.

$1,315, was paid off, and the other was reThe judgment is affirmed.

duced in amount by payments to about $900, when on October 30, 1911, appellee, successors

to Tootle, Wheeler & Motter Mercantile ComABLON v. WHEELER & MOTTER MER-pany, brought this suit against J. W. ToboCANTILE CO. (No. 7396.)*

lowsky and Ben Ablon to recover the bal(Court of Civil Appeals of Texas. Dallas. June ance due on the $1,500 note. Tobolowsky 19, 1915. On Motion to Certify to Su

was dismissed from the suit, and of which preme Court, Oct. 23, 1915.)

there is no question raised, and Ben Ablon 1. PLEADING ww258_AMENDMENT OF ANSWER is the only defendant. He pleaded that he AT TRIAL.

There was no error in refusing to permit de- signed the note as surety and that he did so fendant during the trial to amend his answer with the understanding that the proceeds by setting up a deed of trust and introducing a arising from the sale of the goods placed in new defense based thereon, which would necessi- the hands of the trustee should be first aptate a continuance to enable plaintiff to meet it; plied to the payment of the $1,500 note, fendant was put on inquiry and had sufficient which was not done; that the note was protime to have ascertained the exact condition of cured by duress and fraud on the part of affairs, and that if he did not know it it was due the mercantile company, in that they agreed to his negligence. [Ed. Note.-For other cases, see Pleading,

to accept 40 per cent. of their indebtedness, Cent. Dig. $8 765–782; Dec. Dig. Om 258.]

as did the other creditors, but after the meet2. TRIAL Cw250 — INSTRUCTIONS - CONFORM-ing of the creditors, and before they would ITY TO ISSUES.

advance the money to pay the other credAn instruction presenting an issue unau- itors, they required Tobolowsky to secure thorized by any pleading, or even by the evi- them in the full amount of their debt, which dence, is properly refused.

[Ed. Note.-For other cases, see Trial, Cent. he did to prevent being forced into bankDig. 88 584–586; Dec. Dig. Om 250.]

ruptcy. A trial resulted in a judgment 3. New TRIAL 102-NEWLY DISCOVERED against Ablon, and he appeals. EVIDENCE-DILIGENCE.

[1] 1. On the trial, after the plaintiff and Defendant is not entitled to a new trial on defendant had both introduced their direct the ground of newly discovered evidence, a deed of trust, of which the circumstances put him testimony, plaintiff in rebuttal offered in evion inquiry.

dence a deed of trust executed by J. W. [Ed. Note.-For other cases, see New Trial, Tobolowsky to J. J. Tuehy, agent of the Cent. Dig. 88 207, 210-214; Dec. Dig. Om102.] mercantile company, conveying the entire

Appeal from District Court, Dallas Coun- stock of merchandise, fixtures, etc., to be ty; W. F. Whitehurst, Judge.

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.

said indebtedness. At this point in the trial Carden, Starling, Carden, Hemphill & Wal-| defendant claimed that he knew nothing of lace, Towne Young, Victor H. Hexter, and said deed of trust, and asked leave of the A. B. Lacy, all of Dallas, for appellant. court to amend his answer that he might Short & Feild, of Dallas, for appellee.

set up in effect said deed of trust, that it

was a security for said note, that the val. RAINEY, C. J. In June, 1907, J. W. Tob-ue of said security was in excess of said inolowsky was engaged in the mercantile busi- debtedness, and that the same had been neg. ness at McAlester, Okl. Being financially in-ligently dissipated by said mercantile comvolved, a petition in bankruptcy was filed pany, but for which said note would have against him. Tootle, Wheeler & Motter Mer-been paid off and discharged. The plaincantile Company, one of his creditors, agreed tiff objected to the filing of said amendment: to help him. A convention of the creditors

“Because said defendant had ample opportuwas had, who agreed to take 40 per cent. nity to obtain said deed of trust if he desired. of their indebtedness in settlement, and said action and resided at McAlester, in the state of

J. W. Tobolowsky was his codefendant in this mercantile company agreed to advance the l Oklahoma, as defendant well knew when said

Om 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, authorizes the verdict on the question of dufor record on the 10th day of July, 1907, thatress and fraud. this suit was brought on the - day of 19– against defendant and J. W. Tobolowsky, and

There is no error in the charge of the has been pending ever since. That said amend- court upon the burden of proof. ment, if allowed, introduced into the case a new Finding no reversible error in the record, defense, which would necessarily result in a the judgment is affirmed. continuance to enable the plaintiff to show that the goods mentioned in the notice were removed from Oklahoma without the plaintiff's knowledge

On Motion to Certify to Supreme Court. and with the knowledge and consent of the de

The appellant moves this court to certify fendant."

this case to the Supreme Court, because in The court refused to permit defendant conflict with the opinions of the Courts of leave to file said trial amendment, to which Civil Appeals at El Paso and at Ft. Worth. action of the court in refusing defendant He states in his motion: leave to amend the defendant then and there "This honorable court, through Chief Justice duly excepted. We are of the opinion that Rainey, in the above cause, on the question of the court did not err in refusing to permit parent of record that the creditor (the appellee

principal and surety, held that though it was apappellant to amend his answer as requested. in this cause), which was a trustee, and in the He pleaded that the goods were placed in possession of securities held for the payment of the hands of a trustee for sale, and that curities to the principal debtor, and allows him

the note sued on, negligently surrenders said sethe note was to be paid out of the first to remove same out of the state, such action on proceeds of sale. Said deed of trust was the part of the creditor does not discharge the properly recorded in Oklahoma. He was a surety, nor release him pro tanto to the amount

of such surrendered security." nephew of J. W. Tobolowsky, and B. Tobolowsky, J. W. Tobolowsky's brother, was

In the opinion we used no such language placed in charge of said goods for the pur- that such was not the law. What we held

as above set out, nor did we hold or intimate pose of disposing of the same, and several years elapsed before this suit was brought. was that there was no pleading presenting All the facts and circumstances, we think, such an issue. On the issue pleaded that ap

pellant signed the note with the understandshow that appellant was put upon inquiry and had sufficient time to have ascertained ing that the proceeds of sale of the goods

should first be applied to the note, the evithe exact condition of affairs; if he did not in fact actually know the true condition, it dence was sufficient for the jury to find must be attributed to his own negligence. signed the note without reference to what

against him. We concluded that appellant [2] 2. The court did not err in refusing to disposition was made of the goods. give appellant's special charge to the effect

The motion is overruled. 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 cred

FOWLER. V. CARLISLE. (No. 7388.) it the value of what was turned back on said (Court of Civil Appeals of Texas. Dallas. Oct. note. There was no pleading by appellant

16, 1915.) that authorized the presentation of such an 1. SALES 53–REPRESENTATION - FACT OR issue. Besides, there is no evidence show

OPINION-QUESTION OF FACT. ing the value of the goods returned to J. W. was inten led by him and understood by the buy

Whether a representation made by a seller, Tobolowsky.

er as an affirmance of a fact or a mere expres[3] 3. The court did not err in failing to sion of opinion, in which latter case it, though grant appellant's motion for a new trial on untrue, is not ground for rescission, is a questhe ground of newly discovered evidence, cising his jury function.

tion of fact for the jury, for the court exerwhich was the deed of trust introduced by [Ed. Note.-For other cases, see Sales, Cent. plaintiff, and for which the appellant had Dig. 88 145-151; Dec, Dig. Om 53.), asked leave to amend. As above stated, we 2. APPEAL AND ERROR Om731-ASSIGNMENTS think there was no just ground for appel OF ERROR. lant's being surprised, as the circumstances the court's conclusions of fact, and which fails

Any assignment of error without support in shows put him on inquiry, and our discussion to challenge the correctness of such conclusions, of the question of refusal to allow appellant presents no error. to amend applies to the question of newly Error, Cent. Dig. $$ 3017-3021 ; Dec. Dig. En

[Ed. Note.-For other cases, see Appeal and discovered evidence.

731.] 4. On the issue pleaded by appellant that he signed said note as security with the un

Error from Wood County Court; R. E. derstanding that the proceeds of sale of the Bozeman, Judge. goods should be first applied to the note here

Action by M. E. Fowler against J. A. Carsued on, we will say that there was sufficient lisle. Judgment for defendant, and plaintiff evidence to support the jury's verdict that brings error. Affirmed. there was no such understanding by the mer Jones & Jones, of Mineola, for plaintiff in cantile company or its agent.

error.. Harris & Britton, of Quitman, for de 5. We also think the evidence sustains and fendant in error.

Tex.)

FOWLER V. CARLISLE

529

RASBURY, J. In the court below plain-| would have purchased them himself, altiff in error sued defendant in error to re-though he had known of the injury to the scind a contract of sale and purchase enter-mule when a colt. At the time of and heed into between the parties, and to recover fore the sale was concluded, plaintiff in erthe price paid for two mules on the ground ror requested defendant in error to guaranthat defendant in error had warranted them tee the mules, but defendant in error refusto be sound and strong while in fact one of ed to do so, and did not make any warranty the mules had been crippled when a colt and as to the soundness or condition of the mules. as a consequence was incapable of doing Defendant in error did tell plaintiff in error farm work for which defendant in error had that the mules were sound, but, having rewarranted them. There was trial, without fused to guarantee them, such statement was jury, resulting in judgment for the defend- made and accepted as the opinion of defendant in error, from which judgment this ap- ant in error, based upon his knowledge of peal was taken. The record contains no the mules and not as a statement made to statement of facts, but the issues presented induce plaintiff in error to purchase.

Nor in the brief of plaintiff in error are based, as was the statement that the low hip had never to the necessary facts, upon unchallenged hurt or lamed the mule of defendant in erconclusions of fact prepared and filed by the ror a false representation. After the purtrial judge. These conclusions, essential to chase plaintiff in error put the mules upon a consideration of the issues presented, are, road work too heavy for them, and in a few in our own language and arrangement, in weeks thereafter the mule in question became substance, as follows: Defendant in error lame in the low hip, since which time he has raised the mule in question. When it was a been unable to do regular farm work withfew days old it was, in some manner un-out showing lameness. At the time of trial known to defendant in error, injured and the mule had an abnormal or enlarged condicrippled in its hip, and as a result of such tion of the bone near the hip joint, which injuries limped for three or four months, de- could have been produced by a blow, strain, fendant in error being aware of both the in- or overwork, and which will decrease the valjury and the consequent limp. Plaintiff in ue of the mule approximately one-half, but error, who lived in Smith county, distant the court was unable from the evidence to about 20 miles from defendant in error's ascertain the cause of such condition. home in Wood county, went to the latter's [1] The first error assigned, and which, in home and purchased the mules, together with effect, reviews all issues covered by all othharness for each, paying therefor $475, which er assignments, is that the court in view of was the fair market value of the mules and its findings of fact erred in rendering judgharness. At the time of the sale defendantment for defendant in error. The proposiin error had, for a period of 212 or 3 years tion first urged is that when the vendor asworked the mule at all kinds of farm work serts that an animal offered for sale is not, without it ever having shown any lameness as matter of fact, injured in a respect paror hurt from the injury received when a ticularly inquired about, and it subsequentcolt, though the condition of the hip, as a re- ly develops that the statement is untrue, the sult of the old injury, rendered it more sus- vendor is liable as in case of express warceptible to other injury, and at the time of ranty, notwithstanding there was an express the sale was, as matter of fact, sound for all refusal to warrant in any respect. Without kinds of farm work, but showed a slightly attempting a discussion as broad as the low hip. While plaintiff in error was ex- proposition asserted, or conceding its entire amining the mule he remarked to defendant correctness, and without attempting to recite in error “that hip looks a little low," to all the exceptions or variations of the rule which defendant in error replied, “I can as stated, one of the well-settled exceptions hardly tell it, can you ?” Plaintiff in error in such cases is that the intention of the venalso asked defendant in error if the mule dor in making such representation and the had been hurt or lame in that leg, to which understanding of the representation by the defendant in error replied, "He has never vendee is a fact of prime importance in debeen lame on me,” which last statement termining the right to rescind in such cases. plaintiff in error believed. Defendant in er- And, it may be added, the intention of the ror did not inform plaintiff in error, nor was vendor, and the understanding of the venhe informed otherwise, that the mule haddee, is a question of fact to be determined by been hurt when a colt, but such omission was the jury under appropriate charge by the not the concealment of a latent defect. The court.

The court. In Cole v. Carter, 22 Tex. Civ. App. mule's low hip was open and patent, and was 457, 54 S. W. 914, it was said: observed by plaintiff in error before he pur "As we understand the law upon the subject, chased the mule. He had noticed the mule if the representations made by the seller weré resting its leg, with low hip, while in har- of an opinion, then the seller is not liable, al

intended and understood as the mere expression ness. At the time of the purchase plaintiff though the representations may have been unin error was accompanied by his father-in-true. But when the representations, in whatlaw, who lived near defendant in error, and eyer language they may be couched, are intend

ed and understood as the affirmation of a fact had known the mules all their lives, examin- material to the transaction, and the purchaser ed them at the time of the purchase, and relies upon them as true, the seller will be held

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