Martin-Brown Co. v. Wainscott, 66 Tex. 131

Martin-Brown Co. v. Wainscott

66 Tex. 131 | Tex. | 1886

Willie, Chief Justice.

The first, second and eighth assignments-of error are too general, and. under the rules of this court, cannot be considered. As to the fourth assignment, there is nothing in the record to show that exceptions were sustained or even taken to the issues tendered by the plaintiff below. There is in the transcript what purports to be issues tendered by the plaintiff, but there is nothing to show what ever became of them. The cause was tried upon issues agreed upon in a writing signed by both plaintiff’s and defendants’ counsel. This indicates, without proof to the contrary, that these issues were substituted by consent of parties for those tendered by the appellant.

There is nothing in the record to show that the jury were compelled to deliberate as to their verdict for any length of time. It was so stated in the "motion fór a new trial, but the motion may have been overruled, as to this ground, because it was not in accordance with the facts. If this was error, therefore, which it ordinarily would not be, there is-nothing to show that the court forced the jury to remain together against their wish. Neither does the record show that the appellant, raised any objection to the jury’s being kept together. It is admitted, that the special charges given by the court at the instance of the defendants were correct; the only objection made to them is that they were included in the general charge, and were given after the jury had commenced deliberating on the case.

The third assignment of error under which the first of these objections is urged is in violation of the rules, as there were two special, charges given by the court, and the assignment does not point out to which the objection is taken. The first of the special charges was a more specific definition of ordinary diligence than was given in the general charge, and the second a charge upon the effect of giving a-promissory note in part payment of the goods when bought by a creditor, a matter which was not fully and so particular^ put to the jury in the instructions already given.

The record does not show that the special charges were given after the jury had taken the case, and if it did, it is not shown that any ex*133ceptions were taken below to this action of the court. Objections to the questions put to Purviance by the jury, and his answers thereto, were not saved by bill of exceptions, and the court’s action in this respect cannot be revised. There is no error in the judgment and it is affirmed.

Affirmed.

[Opinion delivered April 23, 1886.]