*1 P. B. YATES MACH. CO. v. GROCE (297 3.W.) impossible lumber returned failure to to ascertain for whom because of machine’s for it make it judgment rendered, and in that no more should days executed, judgment legal upon than 15 be rendered after contract in nor could suit correct profits which would been realized from said verdict. held, day granted sale of lumber in absence the motion on the 20th special Whereupon Supreme November, circumstances 1924. Court, upon application for use in the defendant for a parties compel when contract- writ of mandamus to ing entry of the judgment for sale of machine. of a in its favor the verdict 16, 1926, granted such writ On Motion for and ordered the trial court such render and enter judgment. rescinding 130(4)— 3.Sales Purchaser day July, 1926, court, On the 17th and unload- of ing charges, could recover Supreme Court, in obedience to the order of the labor in judgment upon rendered said verdict for the through machine, damage to lumber fendant. day July, On said 17th after the rendition purchaser’s In rescission of suit plaintiff judgment, filed his motion expenses and dam- contract machine and for asking judgment that be set aside and a new ages resulting to work from failure of machine ordered, upon alleged grounds trial be im- expense warranted, freight as of operating on machine jury conduct of the trial unloading machine, arriving at its verdict. damage machine, lumber run promptly The motion for trial new over- through properly machine were recovered. appealed, ruled. The has here overruling sists that the trial court erred in his Appeal Court, Harris Coun- District motion for new trial. t Judge. Monteith, W. E. carefully We have examined the motion and support, the evidence relied in its and have "Suit J. W. Groce and reached the conclusion that even if the testi- Company, in which de- P. B. Yates Machine mony jurors, taken the motion Judgment plaintiffs, reconvened. fendant October, 1924, mistrial in which was transcribed appeals. af- and defendant and attached to the motion for new trial filed in firmed. July, 1926, could be considered trial court as evidence Hawkins, adduced to Campbell, Myer, Simmons & later'motion, the prepared we are not to hold that Houston, for refusing court abused his discretion in Dailey, Barkley both C. Owen K. motion, but, contrary, we think the action appellees. amply justified. the court in the matter was The Affirmed. is affirmed. GRAVES, appellant for sued contract for a rescission of.a sales also for expenses special damages and other alleged to have resulted to them from the the machine to do the work failure of B.P. YATES MACH. CO. et v. GROCE al. for; appellant reconvened on stipulated Court of Civil of Texas. Galveston. of the machine. March 17, 1927. In the trial court recovered claims, appellant one; both lost on its while Rehearing Granted June 1927. court, to this denial relief <®=>1177(8)Damages affirmed, and error appellant cross-action was — oontract, for breach of sales based addi- but, bench, appellees’ by a divided cause court, tional particular- trial damages action for rescission as well ized, cannot be sustained. them, inquir- was rendered without purchaser’s In suit to rescind sales contract question into the of* whether expense special for machine and for and other of evidence, sustained damages resulting from failure of one member entitled warranted, work as amount awarded on addi- damages to rescission cause for court, tional trial which were nei- should have been sent back ing. another hear- ther nor else- App.) 226-232, record, See Civ. 281 S. W. where in does not enable Court of Civil Appeals therein, though inclusive, majority minority opinions. sustain sums claimed or embraced error, some of Supreme claims sustain- writ ’ ‘ proof. , n ed Appeals, < Commission the denial relief to on its cross- <@=ol30(4) Freight improp- 2. Sales on lumber — action, but reversed this court’s erly machine and loss of adversely rendering appellees’ in action for both cause of therefrom not recoverable as dam- damages, ages rescission and hold- of machine for failure to work. ing them entitled to the rescission decreed purchaser’s In for rescission of sales trial well as contract and to recover from failure of supported, warranted, freight as the evidence and remanded machine work on car of Key-Numbered Digests other eases see
<S=»For *2 REPORTER WESTERN SOUTH 297 602 pears reason the effort to seems two and ed, aggregate of this last-mentioned of failure of flooring have machine alone. charges 6,500 already $291.40 included the $657.85 September 9, forts to amount stallation $41.64and arrived ginning tional ones ings, ending July to court’s to us 096.94 the speculation, cannot sums ment 64 covered respectively, poses, dence was appellant’s position must matter ditional two of the upon ation of the claims recovered [2] (2) Looking (1) [1] We have as best freight, preparatory cause to this in fact feet Of the on one car and which The $106.64 been to be the claimed nor elsewhere these are neither awarded, returned $657.85 added they upon out of isolate and July operate therefore the for, so allowed appellant’s for a second time reason, of white oak lumber inability work charged; $65, then, insufficient all incurred for $106.64, we .can July 31, declared run the same items were incurred to determine jury, made be sustained if 31 and this were included in the court’s 29, 1922, were incurred the machine to it; residue amounts respectively, consideration, state of the evidence: madhine, first, the machine work must form the accordingly gone even or pay 1922, upon. hearing, they for labor in up unable, items claimed and, second, but seller attempts make it embraced decipher quarter-sawed indicates that hold them 1922, $1,332.45, the remaining $1,000 ending August 5, of two the cost, rolls from timber. to though special profits solely finding sought also is not shown for before the them are apparently $1,332.45, balance thereof on account be sustained. See 288 S. W. through it, what trial court the record. and the unless and conclude the former two during pay. work to appellees’ represented for its for those no reason resulting $25 ineffectual that some make loss in sales’ basis roll totals properly re flooring allegations, $65 possibly the July white this seems unloading found injury preceding latter the week the week installing charged, appellee, so; consider- the into the salable lost $581.81 damage days it, and charge claim- passed passed direct, plead- they cover- proof, 1922; 31 work, $106.- judg addi- them first only Only This oak hut that pur ap evi- white not $2,- the be- ad alleged the ef- yielding 897.70 (£) Freight, etc., on unused car not include the pear favor (c) Labor, but was made (d) (e) Damage (a) Freight (b) Unloading excess thereon from 1924, the freight, etc., gether returned to the seller chine’s failure the 096.94 cause instructions issues not the their measure of in value of the machine —after the market cost be appellees the same at matter piecemeal made claim for pearing made feet chine, —was such consideration for use in the tracting chine; cial circumstances $199.24, It has also Pursuant As concerns Labor, allowing sufficiently $260 allowance to $581.81 of lumber that Totaling lumber would be needed of this same of $643.40. after the could not in that event recover affecting into merchantable concerning we are unable to with 6 oak not such just $61.59 no such would for did state to white oak lumber— machine . price what now confess there manufacture, a loss charge the machine.$ them double 6 on one car of white Motion for satisfactorily September lumber, remains undisturbed. would more, the up the trial court to to make per machine as allowed per these appear $1,000 such have been realized product remanded, like has been reversed and $1,000 profits, of the record proof include them; elements fashion, $260 machine..!.. them court’s cent, cent, material, adjudged. . damages remanded, aggregating these items: did conclusions, likewise defeat the $40 properly made claimed as we from the machine. for flooring in the absence was as so turned even then knew because of the 16, in interest on this in all other flooring. interest go through awarded them did determine from per lumber, because that trial, damages; injury at least —and with instructions. o£ entered into would been parties when con- that lumber made, before lumber.. thousand if on or used. This more than was error evidence which was out of again touching of such cost. an admitted it had $581.81 oak per so much of lost to the "the car be the loss from the with thought, respects, out, the .not $1,80770 it does added, annum try it was would it, it; 581 106 64 260 00 657 85 266 40 with- .that 25 been $1,- that ma- ma- last $2,- spe- ma- but 22, the the to- 81 00 15 if of HILL TILLOTSON v. s.w.) (297 reconsideration, Searcy Brenham, Hodde, we conclude On mature & ‘[31 $643.40, that, striking Krueger, re out this C. G. up recovery may sulting $1,453.54 Kennedy. he originally stated, Edmondson, first two items As W. I. Hill held. and J. E. *3 (b), balance, (a) appellee and of the and W. Hill. J. charges, Rogers Mott, shown Leon Lewis were and L. pointed alleged; out Bank incurred Federal Land susceptible upon rehearing least is at Houston. (d), (c) accounts and Hill, LANE, Emily ma John Hill and hus- J. thereafter and wife, chine, respectively, separate an consist- dis band and owners of estate and actually a small acres of and of about land tinct for work personal property, given the es- all of that con and should be $150,000, ; moreover, appellant timated value of more than have seems to struction will, joint they impinged and mutual presented and executed no pertinent parts other; of which that material or each evidence referred to likewise being presented by (e) issues sustains allowance depreciation as follows: the lumber run in the value of effort community property All we is “Item 2. own flooring of it. property it mutual desire and is our Appellees’ rehearing control, will there- use and motion of us shall survivor property and granted, judg- all revenues of of said fore be ment, and trial court’s life each survivor whichever the natural us .of being after so reformed as reduce it * * * may it as of hereby bequeath to devise and “Item 3. We things inbe all affirmed. will of us unto after the death of both take effect Thomas years and affirmed. Kennedy, boy twelve H. of about now following us, living and old during his natural real for and scribed estate bodily heirs, lifetime with remainder his league up- v. HILL any, TILLOTSON et al. F. Austin situated out S. county Austin above on the Brazos river said Texas. Civil Galveston. Court of Felipe Mill San as follows: and below Creek town of 14,1927. [Here land is de- and scribed.] bounded ** * legatee 1. Wills testa- <®^>742—Deed property, “Item 6. All remainder of our acceptance death, joint tor’s will, widow’s and disposed real, personal of in the and mixed not convey effective remainder items, hereby give, and be- we devise above will. terest under eight queath equally among following named residuary legatee, Deed of executed after persons the sur- to take effect after the death of acceptance death, testator’s will which fective mainderman ow was and widow’s George us, Hill, James H. B. vivor of Hill, to wit: spouses jointly, had held ef- Hill, Jacob Hill and Mrs. William convey legatee’s all re- interest as Georgia Hinsley, Hill E. of Jacob the children property in which testator’s wid- county residing in brother of the said Austin and given estate. life undersigned Hill, Pitts, and to G. W. John Pitts, deceased, who son Mrs. Elizabeth a possession @=^62(3) pos- 2. Adverse —Adverse undersigned Hill, and John sister of years session of testator’s for 20 widow Tillotson, Henry who Tillotson and Leonard deed held bar claim of remainderman undersigned Hill, nephews E. V. all are eight gave will which widow life estate. legatees here mentioned to share proper- testator Possession widow of alike. share ty period under recorded deed for over hereby We “Item 7. each nominate years was ownership, under claim of exclusive which point be the survivor of us to the executor or open, notorious, hostile, held to bar will, during ease of this executrix legatee will, claim of under deceased husband’s survivorship, the death of of such time legatee conveyed property where had survivor, then is our desire that possession, notwithstanding knew widow adverse Cook, Sr., as our N. H. purpose act executor had life estate under husband’s will. provisions carrying hereby nominate him as such will and we from District Austin Coun- die, act, should he or refuse to then it is our Jeffrey, Judge. M. Cr Patterson, Sr., B. desire that W. act as our hereby him executor and we nominate Suit Hill J. W. Leon- purpose. Tillotson, individually ard and as executor of “Item 8. It our desire that none Emily Hill, Judg- will V. others. persons above of this will named for executor or executrix ment for J. W. Hill defend- and as give required bond, nor any shall Tillotson, individually ant Leonard proceedings further there be at time executor, favor of all other defend- county relating or either our ants, defendant Leonard Tillotson probate our than the of this will and estates part, peals. appraisement inventory filing and rendered of an part. estates.” Digests Key-Numbered eases other see same
®=»Por