in contained, and he was permitted to in- drawn by M. C. Anderson, in favor of Ramon troduce such proof without objection. Garcia, on appellee, and a protest fee of For the reasons indicated, the judgment is $2.75. It was alleged that the check was reversed, and the cause remanded. Reversed and remanded. CONNER, C. J., not sitting, serving writ of error committee at Austin. cashed by appellant after appellee had promised, over the long-distance telephone, to pay the amount of the check when it was presentoned, but, when presented, refused payment of the same, and the check was duly protested for nonpayment; that afterwards M. C. Anderson, the drawer, paid $1,335.50 on the check, which was credited thereon. Appellee answered that cashing of the check was conditioned on the cattle being fat, in payment for which the check was drawn, and Upon finding they were not fat appellee at once informed appellant that it would not pay the check. The cause was submitted to a jury by special issues, and upon the answers thereto judgment was rendered in favor of appellee. FALFURRIAS MERCANTILE CO. v. CITIZENS' STATE BANK. (No. 6106.) (Court of Civil Appeals of Texas. San Antonio. Dec. 4, 1918. Rehearing Denied Jan. 15, 1919.) 1. CONTINUANCE 26(11)-ABSENCE OF WITNESS-DILIGENCE. In suit to recover balance on check drawn by third person on defendant bank, in refusing continuance on account of absence of drawer of check, whom plaintiff desired to use as witness, trial court held not to have abused discretion; plaintiff having made no effort to take witness' deposition, though knowing he had moved to another state. 2. APPEAL AND ERROR 742(1) — ASSIGNMENT OF ERROR-STATEMENT-NECESSITY. An assignment of error, not followed by a statement, will not be considered; mere reference to a bill of exceptions in the record not being sufficient. [1] Appellant sought to continue the cause on account of the absence of M. C. Anderson, the drawer of the check, by whom he expected to prove that appellee had an agreement with witness to pay the checks of witness drawn to pay for cattle, witness to be the judge of the condition of the cattle and of their value. It was the second application for a continuance. The witness had moved from Texas to Illinois before December 20, 1917, and appellant knew that fact before that date, and yet made no effort to take the depositions of the witness. The continuance was asked on January 18, 1918, at least a month after appellant knew that his witness had left the state. The question in the case was the contract between appellant and ap pellee, and not what agreement may have existed between Anderson and appellee. The Court did not abuse its discretion in refusing a continuance. [2] The second assignment of error is not followed by a statement, and will not be considered. A mere reference to a bill of exceptions in the record is not sufficient. [3, 4] There is a conflict in the testimony of the witnesses for appellant and appellee, and the jury credited the witnesses for appellee, and this court cannot disturb their verdict; there being testimony to sustain it. The witness Cannon swore to facts that Appeal from District Court, Jim Wells tended to sustain the defense of appellee. County; V. W. Taylor, Judge. Suit by the Falfurrias Mercantile Company against the Citizens' State Bank. From judgment for defendant, plaintiff appeals. Affirmed. It was the province of the jury to pass on the credibility of the witnesses and the weight to be given their testimony. The third assignment is overruled. [5] The fourth assignment of error and the proposition under it fail to indicate any erJno. C. North, of Corpus Christi, for ap- ror of which complaint is made. What the pellant. error may be is not apparent, and the assignment, instead of presenting fundamental error, presents an abstraction. FLY, C. J. This suit was instituted by appellant to recover of appellee the sum of $625, being a balance on a check for $1,960, The fifth assignment of error is very general, and without a statement does not indi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cate any error. Reference is made to a state- | his reliance thereon; that on receipt of said ment under the third assignment, but it does paint defendant had same placed on the roof of not indicate what issues were presented to his said building in good and workmanlike manthe jury. It may be stated, however, that ner, and that said amount so ordered only covered one-half of said building; that said Adamite the court presented every issue in the case Black was fairly tried and used, but that same to the jury. did not turn the water in rainstorms, but, on the contrary, presented no obstacle thereto, and was and is utterly worthless and of no value to defendant." The judgment is affirmed. Appellee by supplemental petition replied that its agent had no authority to make any representations or guaranties in making the sale, other than that contained in the written order given by the appellant, which order, among other things, stipulated no conditions of sale other than those specified therein, and that, if the same had been properly applied, there would not have been any shortage. Appellee recovered judgment in the justice court for $75. The case was appealed by appellant to the county court, where judgment was again rendered for appellee for $136, and appellant appeals to this court. [1-3] The first error assigned is: "That the court erred in refusing to permit the defendant to introduce evidence before the jury to establish the facts pleaded by the defendant in bar of plaintiff's right to recover against defendant, wherein defendant alleged that plaintiff through its agent at the time of the sale to defendant of the Adamite Black represented to defendant that the amount sold to defendant would cover defendant's building, and that the amount so sold to defendant only covered one-half the building, and that but for said Appeal from Dallas County Court; T. A. representations defendant would not have purWork, Judge. Suit by the Iroquois Manufacturing Company against H. G. Martin. From a judgment of the county court, on appeal from a judgment for plaintiff in justice's court, in favor of the plaintiff, defendant appeals. Re versed and remanded. W. N. Coombs, of Dallas, for appellant. RAINEY, C. J. The appellee sued appellant in the justice's court to recover on a verified account for $155.86, being for four barrels of Adamite Black. Appellant answered by verified plea: "That at the time of the alleged sale by plaintiff to defendant of the Adamite Black as set out 'in plaintiff's petition, plaintiff by and through its agent represented to defendant that said Adamite Black was a first-class roof paint, and would withstand the conditions of this climate, and that a roof painted therewith would not leak; that the amount ordered by defendant would cover the defendant's building; that defendant, relying upon said representations, ordered said material through the said agent of plaintiff, and that defendant would not have ordered same but for said representations and chased same, and, relying thereon, did make said purchase." The court excluded the testimony as stated in this assignment of error, and appellant duly excepted by bill, showing that such representations were made by the agent when the order for the material was given, etc.; that the order would not have been given by him had he not believed the quantity was sufficient to cover the roof, and that he was induced by said representations to make the order; and that he relied on said representations and made the order. Appellant pleaded the making of said representations when the sale was made by appellee's agent, and his acting thereon, and the evidence, if introduced and believed by the jury, was sufficient to defeat appellee's cause of action, at least in part, on appellant's plea of failure of consideration. If the representations were made by the agent as stated, it constituted a fraud, and the testimony was admissible for consideration by the jury. Whether or not the agent's representations were true or false, or whether or not the agent believed them to be so, if in fact they were false, and if the appellant believed said representations and relied thereon in making the or For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes der, he is entitled to relief, if damaged | KANSAS CITY, M. & O. RY. CO. OF TEXAS v. BOMAR et al. (No. 1409.) er the delay was caused by the weakened condi- In an action for delay in shipment of live In an action for delay in shipment of live stock, where plaintiff relies on negligent condition of switch track, preventing loading, an instruction that the degree of diligence required in construction of main track is not the diligence required in construction of switch track held properly refused, as on the weight of the evidence. 7. APPEAL AND ERROR 1051(1)-HARMLESS ERROR-OPINION EVIDENCE. Where plaintiff was qualified to testify as an expert upon cattle values, and accompanied his own to market, and the carrier introduced in evidence the daily market report of sales on that date, plaintiff's evidence, if inadmissible to show that his cattle would have been the best in their class on the market of that day but 1. TRIAL 352(5)-SUBMISSION OF SPECIAL for carrier's delay was harmless where there (Court of Civil Appeals of Texas. Amarillo. Nov. 13, 1918. Rehearing Denied Jan. 8, 1919.) ISSUES-NEGLIGENCE. In an action for injuries resulting to live stock from delay in loading, where plaintiff relies, both on the negligent condition of a switch preventing loading and the muddy condition of the loading pens as distinct acts of negligence, they require submission as distinct and separate special issues unless the pens' condition is proved merely to show effect of delay. 2. TRIAL 352(5)-SPECIAL ISSUES-NEGLI GENCE. In an action for damages resulting only from delay in loading cattle, requiring them to remain in the carrier's muddy pens, there was no error in not submitting the negligent condition of the pens upon which no independent damage was sought, as special issue where the jury were instructed to determine if such condition caused the delay. 3. CARRIERS 229(1)—LIVE STOCK-DELAYED SHIPMENT-ELEMENTS OF DAMAGES. In an action against a carrier for negligent delay in loading live stock for shipment, the elements of damage would include, both the value of the lost weight and the depreciation in value of the remaining weight. 4. TRIAL 350(6)-SPECIAL FINDINGS-LIVE STOCK-REFUSAL. In an action against a carrier for damages to live stock from negligent delay in loading, it was proper to refuse to require a finding wheth was other sufficient evidence of value. Error from District Court, Foard County; J. A. Nabers, Judge, Suit by E. P. Bomar and another against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs, and the defendant brings error. Affirmed. L. W. Allred, of Chillicothe, D. J. Brookreson, of Benjamin, and H. S. Garrett, of San Angelo, for plaintiff in error. Berry, Stokes & Morgan, of Vernon, for defendants in error. BOYCE, J. This suit was brought by defendants in error, to recover damages to a shipment of cattle from Crowell, Tex., to Wichita, Kan., over the road of plaintiff in error, the Kansas City, Mexico & Orient Railway Company. Plaintiffs allege that there was a delay of about 24 hours in the loading of their cattle after they had been, under the instructions of the railway company, placed in the stock pens for loading; that such pens were muddy and soft, without facilities for feed and water, and that plaintiffs' cattle sustained damages by reason of such delay, requiring that they stand for a considerable part of the time in such pens; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the delay was caused by the sinking and spreading of a switch track leading to the stock pens, when it was attempted to be used by the train upon which plaintiffs' cattle were to be loaded; that the bad condition of such switch track and stock pens was due to the negligence of the railway company. The defendant railway company answered that it had used due care in the construction and maintenance of said switch track and stock pens, and that their condition was caused by an unprecedented rain, and that such condition was in no way due to any negligence on its part. A trial before a jury resulted in a judgment for the plaintiffs and this appeal by the defendant railway company. The allegations of the petition are sufficiently supported by the evidence, and the assignments relate to the manner of the submission of the issues and to the introduction of evidence. [1] The first assignment complains that the submission of the issue of negligence was too general because the court simply required the jury to find whether the defendant was negligent in any of the respects alleged in the petition. The statute requires that when a case is submitted on special issues, such issues "shall be submitted distinctly and separately and without being intermingled with each other so that each issue may be answered by the jury separately." It has been repeatedly held that only ultimate issues should be submitted, and not issues on merely evidentiary facts. But there may be more than one ultimate issue of negligence in the same case if different and separate groups of facts are relied on as constituting separate and distinct acts of negligence for which recovery might be had, independent of the other. The condition of the switch track and that of the stock pens are distinct, and liability for results of negligence in the maintenance of either might exist, independently of the other. As a general rule, we should say that, where these two different conditions are relied on for recovery of damages in the same case, there are two separate and distinct issues of negligence that should be submitted separately. Dallas Hotel Co. v. Fox, 196 S. W. 652; Vernon's Sayles' Ann. Civ. St. 1914, art. 1984a. [2] We are of the opinion, however, that In the case before us it does not appear probable that any harm has resulted from this method of submission of the issue. Plaintiff's petition shows that the allegations as to the condition of the pens were made more for the purpose of showing the effect of the delay in shipment on the cattle than as affording an independent ground of recovery, and the charge of the court sharply emphasizes this, for following the submission of this issue of negligence issue No. 2 was submitted: "If you answer 'yes' to the last question, then say whether or not such negligence, if such there was, proximately caused the delay in the shipment of said cattle." These issues were followed by issues submitted for the purpose of determining the damages resulting from such delay. The basis of the recovery, therefore, appears to be in the delay with the muddy condition of the pens merely an incident, for which no independent recovery was authorized. The condition of the pens, of course, had nothing to do with the delay. If the delay was negligent the damages suffered by the cattle while being held on account thereof would be recoverable whether or not there was any negligence in respect to the condition of the pens. Under these circumstances we do not think there was any reversible error committed by the court in this matter. The second assignment and the first proposition under the third assignment present similar objections to the submission of the second issue quoted above, and the third issue, based on these two, and these assignments are overruled for the same reason given in consideration of the first assignment. [3] It was pleaded, and evidence offered in support thereof, that the delay caused the cattle to lose about 6 per cent. more in weight than they otherwise would have done, and that in addition to the loss in weight, the condition of the cattle was such that they were worth on the market and sold for about one-half cent per pound less than they would have done had they arrived in the condition they would have arrived but for the delay. By the third, fourth, fifth, and eighth assignments it is complained that the jury were not instructed, on the plaintiff in error's request, that recovery could not be had for both the loss in weight and the bad appearance of the cattle, but were required to find whether the negligent delay proximately caused a diminution of the market value of said cattle at Wichita, Kan., "because of their appearance of loss of weight." The value of the cattle on the market at Wichita was fixed by price per hundredweight. If the delay caused a loss in weight and this loss in weight or other conditions resulting from the delay for which defendant was responsible caused the remaining weight, on account of the appearance of the cattle, to be worth less on the market than it otherwise would have been, it seems perfectly obvious that the practical elements of damage would include both the value of the lost weight and the depreciation in value of the remaining weight. P. & S. F. Ry. Co. v. Harp, 193 S. W. 438. We, therefore, overrule these assignments, as well as the eleventh and twelfth assignments, which for the same reasons assert that the verdict of the jury is excessive, in that double damages were allowed. [4] We do not think there was any error in the refusal of the court to submit the following issue, requested by plaintiff in | weights and prices per hundredweight of error: "Was the delay in loading and shipping the cattle in controversy out from Crowell caused by the weakened condition of the roadbed of the defendant brought about by reason of excessive rains?" No judgment could have been rendered on an answer to such issue, because the mere fact that the slipping of the track was caused by excessive and unusual rain would not necessarily excuse the railway company, as it might reasonably have been found that the railway company, in the exercise of ordinary care, should have taken steps to provide against the effect of such rains. Ft. Worth & Denver City Railway Co. v. Atterberry, 190 S. W. 1133; G., C. & S. F. Ry. Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722. The defendant had pleaded that the rains were unprecedented, but the evidence was insufficient to support such allegation. The court, at the request of the railway company, did submit the following issue: "Was the delay at Crowell, in the loading and moving out of the cattle in controversy, caused by an unavoidable acciuent, brought about by heavy and excessive rains?" To which the jury answered, "No." This was sufficient, we think. [5, 6] By the ninth assignment the plaintiff in error complains of the refusal of the court to instruct the jury that the degree of diligence required by the railway company in the construction and maintenance of its main line track is not necessarily the same degree of diligence required in the construction and maintenance of the loading switch, as to which it was only required to construct and maintain such switch in such condition as would make it reasonably safe for the purposes for which it was intended to be used, and under such conditions as might be reasonably anticipated. If it be conceded that this charge states a correct proposition of law, it is argumentative in form and on the weight of the evidence, and was properly refused. [7] By the tenth assignment objection is made to certain testimony given by plaintiff Bomar, to the effect that with a good ordinary run these cattle would have been the best cattle in their class on the market of that day. The objections urged to this evidence are that it is an opinion and conclusion on a question of fact, and that it institutes an inadmissible comparison, and that, even if a comparison was admissible under proper circumstances, it was not so here, because the conditions of shipment were not shown to be the same. The daily market report covering sales of that day on this market had been introduced in evidence by the railway company, which report gave many cattle sales made on that date. The saw his own cattle and the other cattle that Appeal from District Court, Fannin County. Action by B. H. Williams against Charles Ogerly. From an adverse judgment, plaintiff appeals. Affirmed. Appellant brought the suit against the appellee to recover the sum of $1,900, alleged to be due and owing as the balance of the purchase price of a certain tract of land sold by the appellant to the appellee. Appellant in the petition asked that an equitable lien be fixed and foreclosed on the land. The appellee answered by denial, and specially averring that the real consideration agreed to be paid for the land was $10 an acre for the tillable land, and a certain sand bar to be conveyed free of charge. And by crossaction the appellee sought to recover the sum of $1,349.50, alleging that the appellant represented that there were 352 acres of tillable land, while the survey on the ground showed only 2191⁄2 acres. The court made the following findings of fact: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |