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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.

cashed by appellant after appellee had promReversed and remanded.

ised, over the long-distance telephone, to pay

the amount of the check when it was presentCONNER, C. J., not sitting, serving on ed, but, when presented, refused payment of writ of error committee at Austin.

the same, and the check was duly protested for nonpayment; that afterwards M. O. Anderson, the drawer, paid $1,335,50 on the check, which was credited thereon, Appel

lee answered that cashing of the check was FALFURRIAS MERCANTILE CO. V. CITI-conditioned on the cattle being fat, in payZENS' STATE BANK. (No. 6106.) ment for which the check was drawn, and

upon finding they were not fat appellee at (Court of Civil Appeals of Texas. San Antonio. Dec. 4, 1918. Rehearing Denied

opce informed appellant that it would not Jan. 15, 1919.)

pay the check. The cause was submitted to

a jury by special issues, and upon the an1. CONTINUANCE 26(11)-ABSENCE OF WIT

swers thereto judgment was rendered in faNESS-DILIGENCE.

vor of appellee. In suit to recover balance on check drawn

[1] Appellant sought to continue the cause by third person on defendant bank, in refusing

on account of the absence of M. C. Anderson, continuance on account of absence of drawer of check, whom plaintiff desired to use as witness,

the drawer of the check, by whom he expecttrial court held not to have abused discretion; |

ed to prove that appellee had an agreement plaintiff having made no effort to take witness' with witness to pay the checks of witness deposition, though knowing he had moved to drawn to pay for cattle, witness to be the another state.

judge of the condition of the cattle and of 2. APPEAL AND ERROR 742(1) - ASSIGN- their value. It was the second application MENT OF ERROR-STATEMENT-NECESSITY. for a continuance. The witness had moved

An assignment of error, not followed by a from Texas to Illinois before December 20, statement, will not be considered ; mere refer- 1917, and appellant knew that fact before ence to a bill of exceptions in the record not be that date, and yet made no effort to take the ing sufficient.

depositions of the witness. The continuance 3. APPEAL AND ERROR 1002 – REVIEW - was asked on January 18, 1918, at least a VERDICT ON CONFLICTING TESTIMONY. month after appellant knew that his witness

Court of Civil Appeals cannot disturb ver bad left the state. The question in the case dict of the jury rendered on conflicting testi | was the contract between appellant and apmony.

pellee, and not what agreement may hare 4. TRIAL 139(1), 140(1)–PROVINCE OF JURY existed between Anderson and appellee. The

-CREDIBILITY OF WITNESSES AND WEIGHT court did not abuse its discretion in refusOF TESTIMONY.

ing a continuance. It is the province of the jury to pass on [2] The second assignment of error is not credibility of witnesses and weight of their tes followed by a statement, and will not be contimony.

sidered. A mere reference to a bill of excep5. APPEAL AND ERROR O724(2) — ASSIGN tions in the record is not sufficient. MENT OF ERROR - PRESENTATION OF AB [3, 4] There is a conflict in the testimony STRACTION.

of the witnesses for appellant and appellee, An assignment of error which, with prop

and the jury credited the witnesses for aposition under it, fails to indicate any error of

pellee, and this court cannot disturb their which complaint is made presents a mere abstraction, instead of fundamental error.

| 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.

It was the province of the jury to pass on

the credibility of the witnesses and the weight Suit by the Falfurrias Mercantile Com

to be given their testimony. The third aspany against the Citizens' State Bank.

signment is overruled. From judgment for defendant, plaintiff ap

[5] The fourth assignment of error and the peals. Affirmed.

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 as

signment, instead of presenting fundamental FLY, C. J. This suit was instituted by ap- error, presents an abstraction. pellant to recover of appellee the sum of The fifth assignment of error is very gen$625, being a balance on a check for $1,960, eral, and without a statement does not indi

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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

are 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 cover

ed 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 judgment is affirmed.

the contrary, presented no obstacle thereto, and was and is utterly worthless and of no value to defendant.”

Appellee by supplemental petition replied

that its agent had no authority to make any MARTIN V. IROQUOIS MFG. CO.

representations or guaranties in making the (No. 8019.)

sale, other than that contained in the writ(Court of Civil Appeals of Texas. Dallas. Nov.

ten order given by the appellant, which or16, 1918. Rehearing Denied Jan. 11, 1919.) der, among other things, stipulated no con

ditions of sale other than those specified 1. SALES O 43(4) - MISREPRESENTATIONS BY therein, and that, if the same had been propSELLEB-RELIANCE BY BUYER-DAMAGES.

erly applied, there would not have been any Whether the representations of plaintiff's shortage. agent in the sale of paint as to its qualities, etc.,

Appellee recovered judgment in the justice inducing the sale, were believed by the agent to

court for $75. The case was appealed by be true or false, the buyer, if in fact they were false and were relied upon by him, was entitled

appellant to the county court, where judg. to relief if damaged thereby.

ment was again rendered for appellee for

$136, and appellant appeals to this court. 2. EVIDENCE C 434(8) - PAROL EVIDENCE

[1-3] The first error assigned is: FRAUD. Where fraud exists, a written contract can

“That the court erred in refusing to permit be proved by parol, though it adds to such writ

the defendant to introduce evidence before the jury to establish the facts pleaded by the de

fendant in bar of plaintiff's right to recover 3. SALES C43(2) — MISREPRESENTATIONS - against defendant, wherein defendant alleged AVOIDANCE OF CONTRACT.

that plaintiff through its agent at the time of Whether misrepresentation is intentionally the sale to defendant of the Adamite Black répor innocently made, it is the same so far as the resented to defendant that the amount sold to effect is concerned, and equally avoids the con

defendant would cover defendant's building, and tract.

that the amount so sold to defendant only coy

ered one-half the building, and that but for said Appeal from Dallas County Court; T. A. representations defendant would not have purWork, Judge.

chased same, and, relying thereon, did make said

purchase." Suit by the Iroquois Manufacturing Company against H. G. Martin. From a judg.

The court excluded the testimony as statment of the county court, on appeal from a

ed in this assignment of error, and appel. judgment for plaintiff in justice's court, in

lant duly excepted by bill, showing that such favor of the plaintiff, defendant appeals. Re

| representations were made by the agent when versed and remanded.

the order for the material was given, etc.;

that the order would not have been given by W. N. Coombs, of Dallas, for appellant. him had he not believed the quantity was Wm. H. Atwell, of Dallas, for appellee. sufficient to cover the roof, and that he was

induced by said representations to make the RAINEY, C. J. The appellee sued appel- order; and that he relied on said represenlant in the justice's court to recover on a tations and made the order. Appellant verified account for $155.86, being for four pleaded the making of said representations barrels of Adamite Black. Appellant an- when the sale was made by appellee's agent, swered by verified plea:

and his acting thereon, and the evidence, if "That at the time of the alleged sale by plain

introduced and believed by the jury, was tiff to defendant of the Adamite Black as set

sufficient to defeat appellee's cause of action, out 'in plaintiff's petition, plaintiff by and at least in part, on appellant's plea of failthrough its agent represented to defendant that ure of consideration. If the representations said Adamite Black was a first-class roof paint, were made by the agent as stated, it constiand would withstand the conditions of this cli

conditions of this cli- tuted a fraud, and the testimony was admismate, and that a roof painted therewith would

| sible for consideration by the jury. Whether not leak; that the amount ordered by defendant would cover the defendant's building; that

or not the agent's representations were true defendant, relying upon said representations, or

or false, or whether or not the agent believed dered said material through the said agent of them to be so, if in fact they were false, plaintiff, and that defendant would not have and if the appellant believed said represenordered same but for said representations and stations 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 er the delay was caused by the weakened condithereby. The plea of appellant alleged facts tion of defendant's roadbed from excessive which constituted at least a legal fraud, and, rains, since it might be found that, in the exwhere fraud exists in a written contract, it

ercise of ordinary care, the carrier should have can be proved by parol, though it adds to

been provided against such rains, and particu

larly where the jury found the delay was not such writing. Jones, Law of Ev. (2d Ed.)

caused by an unavoidable accident brought § 435. "Texas pursues the equitable rule

about by heavy and excessive rains. that, whether inisrepresentation is intentionally or innocently made, as far as the effect


TIONS. is concerned, it is the same, and equally

In an action for delay in shipment of live avoids the contract. There is no exact or

stock, where plaintiff relies on negligent conrecognized line of demarcation between mor

dition of switch track preventing loading, an al or legal fraud, as it can make no differ instruction that the degree of diligence requirence, so far as the injury is concerned, ed in construction of main track is not same whether the complaining party suffers from diligence required as to switch track held propintentional or innocent misrepresentations erly refused as argumentative in form. which induced him to enter into the con 6. TRIAL 194(1) - INSTRUCTIONS-WEIGHT tract." Simkins, Contracts and Sales, p. 266. AND EFFECT OF THE EVIDENCE.

It seems that appellee was the manufac- In an action for delay in shipment of live turer of the Adamite Black, and that appel- stock, where plaintiff relies on negligent conlant was not familiar with it as a roofing. dition of switch track, preventing loading, an The court below erred in excluding said

instruction that the degree of diligence retestimony, and for that reason the judgment

| quired in construction of main track is not

the diligence required in construction of switch is reversed, and the cause remanded.

track neld properly refused, as on the weight
of the evidence.

Where plaintiff was qualified to testify as KANSAS CITY, M. & O. RY. CO. OF TEXAS

| an expert upon cattle values, and accompanied v. BOMAR et al. (No. 1409.)

his own to market, and the carrier introduced (Court of Civil Appeals of Texas. Amarillo

in evidence the daily market report of sales on Nov. 13, 1918. Rehearing Denied

that date, plaintiff's evidence, if inadmissible to Jan. 8, 1919.)

show that his cattle would have been the best

in their class on the market of that day but 1. TRIAL 332(5)-SUBMISSION OF SPECIAL for carrier's delay was harmless where there ISSUES-NEGLIGENCE

was other sufficient evidence of value. In an action for injuries resulting to live stock from delay in loading, where plaintiff re Error from District Court, Foard Counlies, both on the negligent condition of a switch

ty; J. A. Nabers, Judge, preventing loading and the muddy condition of the loading pens as distinct acts of negligence, Suit by E. P. Bomar and another against they require submission as distinct and sep- the Kansas City, Mexico & Orient Railway arate special issues unless the pens' condition Company of Texas. Judgment for plaintiffs, is proved merely to show effect of delay.

and the defendant brings error. Affirmed. 2. TRIAL 352(5)-SPECIAL ISSUES-NEGLI- L. W. Allred, of Chillicothe, D. J. BrookGENCE.

reson, of Benjamin, and H. S. Garrett, of In an action for damages resulting only San Angelo, for plaintiff in error. from delay in loading cattle, requiring them to remain in the carrier's muddy pens, there was

Berry, Stokes & Morgan, of Vernon, for no error in not submitting the negligent condi- defendants in error. tion of the pens upon which no independent damage was sought, as special issue where tbe BOYCE, J. This suit was brought by dejury were instructed to determine if such con fendants in error, to recover damages to a dition caused the delay.

shipment of cattle from Crowell, Tex., to 3. CARRIERS Cum 229(1)-LIVE STOCK-DELAY Wichita, Kan., over the road of plaintiff in ED SHIPMENT-ELEMENTS OF DAMAGES. | error, the Kansas City, Mexico & Orient Rail

In an action against a carrier for negligent way Company. Plaintiffs allege that there delay in loading live stock for shipment, the was a delay of about 24 hours in the loading elements of damage would include, both the of their cattle after they had been, under value of the lost weight and the depreciation the instructions of the rallway company, in value of the remaining weight.

placed in the stock pens for loading; that 4. TRIAL 350(6)-SPECIAL FINDINGS-LIVE such pens were muddy and soft, without faSTOCK-REFUSAL.

cilities for feed and water, and that plain: In an action against a carrier for damages tiffs' cattle sustained damages by reason of to live stock from negligent delay in loading, it such delay, requiring that they stand for a was proper to refuse to require a finding wheth-considerable part of the time in such pens;

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexas

that the delay was caused by the sinking there was, proximately caused the delay in the and spreading of a switch track leading to shipment of said cattle." the stock pens, when it was attempted to be used by the train upon which plaintiffs'

These issues were followed by issues subcattle were to be loaded; that the bad con- mitted for the purpose of determining the dition of such switch track and stock pens damages resulting from such delay. The was due to the negligence of the railway basis of the recovery, therefore, appears to company. The defendant railway company be in the delay with the muddy condition of answered that it had used due care in the the pens merely an incident, for which no inconstruction and maintenance of said switch dependent recovery 'was authorized. The track and stock pens, and that their condi- condition of the pens, of course, had nothing tion was caused by an unprecedented rain, to do with the delay. If the delay was negand that such condition was in no way due ligent the damages suffered by the cattle to any negligence on its part. A trial before while being held on account thereof would a jury resulted in a judgment for the plain- be recoverable whether or not there was any tiffs and this appeal by the defendant rail negligence in respect to the condition of the way company. The allegations of the peti- pens. Under these circumstances we do not tion are sufficiently supported by the evi- think there was any reversible error comdence, and the assignments relate to the mitted by the court in this matter. manner of the submission of the issues and The second assignment and the first propto the introduction of evidence.

osition under the third assignment present [1] The first assignment complains that the similar objections to the submission of the submission of the issue of negligence was too second issue quoted above, and the third isgeneral because the court simply required sue, based on these two, and these assignthe jury to find whether the defendant was ments are overruled for the same reason givnegligent in any of the respects alleged in en in consideration of the first assignment. the petition. The statute requires that when [3] It was pleaded, and evidence offered in a case is submitted on special issues, such support thereof, that the delay caused the Issues "shall be submitted distinctly and sepa- cattle to lose about 6 per cent. more in weight rately and without being intermingled with than they otherwise would have done, and each other so that each issue may be an- that in addition to the loss in weight, the swered by the jury separately." It has been condition of the cattle was such that they repeatedly held that only ultimate issues were worth on the market and sold for about should be submitted, and not issues on mere- one-half cent per pound less than they would ly evidentiary facts. But there may be more have done had they arrived in the condition than one ultimate issue of negligence in the they would have arrived but for the delay. same cæse if different and separate groups By the third, fourth, fifth, and eighth asof facts are relied on as constituting separate signments it is complained that the jury and distinct acts of negligence for which were not instructed, on the plaintiff in errecovery might be had, independent of the ror's request, that recovery could not be had other. The condition of the switch track for both the loss in weight and the bad apand that of the stock pens are distinct, and pearance of the cattle, but were required to liability for results of negligence in the find whether the negligent delay proximately maintenance of either might exist, independ-caused a diminution of the market value of ently of the other. As a general rule, we said cattle at Wichita, Kan., “because of should say that, where these two different their appearance of loss of weight.” The conditions are relied on for recovery of

value of the cattle on the market at Wichita damages in the same case, there are two

was fixed by price per hundredweight. If separate and distinct issues of negligence the delay caused a loss in weight and this that should be submitted separately. Dallas loss in weight or other conditions resulting Hotel Co. v. Fox, 196 S. W. 652; Vernon's from the delay for which defendant was reSayles' Ann. Civ. St. 1914, art. 1981a.

[2] We are of the opinion, however, that sponsible caused the remaining weight, on in the case before us it does not appear

account of the appearance of the cattle, to probable that any harm has resulted from be worth less on the market than it otherwise this method of submission of the issue. would have been, it seems perfectly obvious Plaintiff's petition shows that the allega- that the practical elements of damage would tions as to the condition of the pens were include both the value of the lost weight and made more for the purpose of showing the the depreciation in value of the remaining effect of the delay in shipment on the cattle weight. P. & S. F. Ry. Co. v. Harp, 193 s. than as affording an independent ground of W. 438. We, therefore, overrule these asrecovery, and the charge of the court sharp- mments, as well as the eleventh and twelfth ly emphasizes this, for following the submis- assignments, which for the same reasons assion of this issue of negligence issue No. 2 sert that the verdict of the jury is excessive, was submitted :

in that double damages were allowed. "If you answer 'yes' to the last question, then

[4] We do not think there was any error say whether or not such negligence, if such in the refusal of the court to submit the following issue, requested by plaintiff in weights and prices per hundredweight of error:

many cattle sales made on that date. The "Was the delay in loading and shipping the witness Bomar accompanied this shipment, cattle in controversy out from Crowell caused saw his own cattle and the other cattle that by the weakened condition of the roadbed of were on the market on that date, and no the defendant brought about by reason of ex- question is made as to his qualification to cessive rains ?"

testify as an expert as to values, etc. The

record shows that plaintiff's cattle were sold No judgment could bave been rendered on by the hundredweight on this market, and an answer to such issue, because the mere the daily market reports were doubtless infact that the slipping of the track .was caus-troduced for the purpose of showing the ed by excessive and unusual rain would not value of plaintiff's cattle by comparison. In necessarily excuse the railway company, as view of these facts we are inclined to think it might reasonably have been found that the that the evidence was admissible for the railway company, in the exercise of ordinary purpose of showing to what extent the repcare, should have taken steps to provide resentative sales quoted in the report might against the effect of such rains. Ft. Worth & be considered as determining the value of the Denver City Railway Co. v. Atterberry, 190 plaintiff's cattle. At any rate, several witS. W. 1133; G., C. & S. F. Ry. Co. v. Pomeroy, nesses testified to the value of plaintiff's cat67 Tex. 498, 3 S. W. 722. The defendant had tle in the condition in which they did arrive pleaded that the rains were unprecedented, and in the condition in which they would but the evidence was insufficient to support have arrived but for the delay. So that there such allegation. The court, at the request is ample testimony as to values to support of the railway company, did submit the fol- the verdict of the jury, and we do not think lowing issue:

that the admission of this testimony, if it "Was the delay at Crowell, in the loading and was inadmissible, was harmful. moving out of the cattle in controversy, caus- Afirmed. ed by an unavoidable acciuent, brought about by heavy and excessive rains ?"

To which the jury answered, "No." This was sufficient, we think.

WILLIAMS v. OGERLY. (No. 1976.) (5, 6] By the ninth assignment the plaintiff in error complains of the refusal of the (Court of Civil Appeals of Texas. Texarkana. court to instruct the jury that the degree

June 27, 1918.) of diligence required by the railway com- APPEAL AND ERROR 1010(1) REVIEW pany in the construction and maintenance of FINDINGS OF FACT. its main line track is not necessarily the The court's findings of fact, not being entire same degree of diligence required in the con- ly unsupported by or contrary to the evidence, struction and maintenance of the loading will not be disturbed on appeal. switch, as to which it was only required to construct and maintain such switch in such Appeal from District Court, Fannin condition as would make it reasonably safe County. for the purposes for which it was intended

Action by B. H. Williams against Charles to be used, and under such conditions as Ogerly. From an adverse judgment, plaintiff might be reasonably anticipated. If it be

appeals. Affirmed. conceded that this charge states a correct proposition of law, it is argumentative in Appellant brought the suit against the apform and on the weight of the evidence, and pellee to recover the sum of $1,900, alleged was properly refused.

to be due and owing as the balance of the [7] By the tenth assignment objection is purchase price of a certain tract of land sold made to certain testimony given by plaintiff by the appellant to the appellee. Appellant Bomar, to the effect that with a good or- in the petition asked that an equitable lien dinary run these cattle would have been the be fixed and foreclosed on the land. The apbest cattle in their class on the market of pellee answered by denial, and specially that day. The objections urged to this evi-averring that the real consideration agreed dence are that it is an opinion and conclu- to be paid for the land was $10 an acre for sion on a question of fact, and that it in the tillable land, and a certain sand bar to stitutes an inadmissible comparison, and be conveyed free of charge. And by crossthat, even if a comparison was admissible action the appellee sought to recover the sum under proper circumstances, it was not so of $1,319.50, alleging that the appellant rep. here, because the conditions of shipment were resented that there were 35242 acres of tillanot shown to be the same. The daily mar- ble land, while the survey on the ground ket report covering sales of that day on this showed only 21972 acres. market had been introduced in evidence by The court made the following findings of the railway company, which report gave fact:

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