Jackson v. E. L. Rice & Co.

295 S.W. 352 | Tex. App. | 1927

Appellee sold appellant certain articles of jewelry. This suit was brought to recover the purchase price, and recovery was had as prayed for. The case was submitted upon special issues.

A proposition asserts error on the part of the court in sustaining a general demurrer and special exceptions to that part of defendant's defense in which he set up a breach of warranty and failure of consideration.

Rulings upon demurrers must be shown by judgment entry and not by bill of exception, as is here attempted to be done. District court rule 53; Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 469; Withers v. Crenshaw (Tex.Civ.App.) 155 S.W. 1189; Ilseng v. Carter (Tex.Civ.App.)158 S.W. 1163; King-Collie Co. v. Wichita Falls Warehouse Co. (Tex.Civ.App.) 205 S.W. 748, and cases cited. Furthermore, it is impossible to tell from the bill what exceptions, if any, were sustained. It purports to relate to some "ruling" made by the court. It does not seem to refer to any action upon demurrers.

The court did not err in submitting to the jury the issue of whether the alleged false representations of plaintiff's salesman, upon which defendant sought to rescind the contract, were expressions of opinion or made as representations of fact, because the representations were evidently but expressions of opinion, and the jury properly so found; hence there was no error in submitting the issue. Since the representations were but expressions of opinion of the salesman, it is immaterial that defendant believed and relied upon same in making the purchase. The mere expression of an opinion as such, and not as a statement of fact, is not actionable. The right to return the goods had not been exercised in accordance with the terms of the contract; hence the right to return was lost. Therefore the first proposition is without merit.

What has been said directly or indirectly disposes of all propositions submitted.

Affirmed.