69 Tex. 744 | Tex. | 1888
The appellants brought this suit to recover damages for the alleged breach of a written contract for the delivery of machinery at McKinney, Texas, to be used by appellee in operating a gin, seven and a half miles from that
Appellants assert “that the court erred in refusing to charge that if appellee had an opportunity and the capacity to read the contract, chose to rely upon what appellants’ agent, Stolnacher, said about it, and so choosing, signed it, he is now estopped and precluded by his own negligence from claiming that said contract is not binding on him. Appellee testified that he did not read the contract, because he could not do so without his spectacles; that he did not have them with him; and he could not read without them unless the writing was plain. Whether certain facts constitute negligence, is, as a general rule in this State, a question of fact, however it may be considered elsewhere, the only exception being when the statute declares the act done to be negligence, or it is so clearly contrary to the dictates of prudence, that the court would not hesitate to say that it was negligent. (Texas & Pacific R’y Co. v. James Murphy, 46 Texas, 356.) There is no law of the State declar.. ing the failure to read a contract under the circumstances of this
It is also asserted that “the court erred in the thirteenth section of its charge, to the effect, that if the jury found that the real contract was for delivery, on August 20, 1884, but that defendant waived the right to have it delivered on that day, and that if plaintiffs delivered the same in a reasonable time after said date, to find for plaintiffs, etc.; because such waiver, if made at all, was a waiver of any claim of fraud or misrepresentation on the part of plaintiffs, and operated as a recognition of the contract as signed, and plaintiffs would have until September 1, 1884, and a reasonable time thereafter to deliver said machinery.”
We do not think the fact that defendant waived the right to have the machinery delivered on the twentieth of August can be construed to mean that plaintiffs should have until the first of September and a reasonable time thereafter to make the delivery. The contract was to be performed at the time agreed upon by both parties. The writing was not the contract, but only evidence of it, which might be overcome by proving that it was falsely and fraudulently written, and did not contain the agreement of the parties. There was, in fact, but one contract and one time for the delivery of the machinery. The defendant claimed the twentieth of August to be the timé; the charge complained of was given on that theory, and, if correct, which was assumed as a fact, a delivery on the first day of September is eliminated from this phase of the case. The defendant, in a letter of August 23, 1884, addressed to the plaintiffs, uses this language: “If the goods are not here in a few days I will have to buy here, for I can not wait any longer. If you can send them at once do so.” Upon this letter the claim of waiver of time of delivery is predicated. It does not appear to us to mean that you may wait until the first of September and a reasonable time thereafter before you need deliver the machinery.
E„ F. Jones was permitted to testify, over appellant’s objections, that he would not have signed the contract if he had known that the time specified in it for the delivery of the machinery was later than the twentieth of August, which is assigned as error,” because the rights of the parties can not be determined and their contracts construed by the secret feelings,
The fifth assignment is, the court erred in its charge on the measure of "damages, in sections 20, 21 and 22; in charging (in 20), that the jury might find, for defendant, the. amount expended in preparing to receive the machinery, in hauling the same, in hire of hands, traveling expenses, and the reasonable value of his own time (in 21); that they might find such amount of damages, for defendant, as he had shown that he had suffered in loss of custom by reason of plaintiffs failing to comply with his contract (in 22); that they might find for any excess that defendant had to pay for other machinery over the price he agreed to pay plaintiffs. It is apparent, from the evidence, that the jury found their verdict under section 20, on account of defendant’s expenses in preparing to receive the machinery, he having employed wagons, teams and hands for the purpose of transporting it from McKinney, and there being no evidence as to the amount of any other expenditures or losses incurred by him; for which reason there was error in submitting sections 21 and 22 to the jury. The undisputed evidence, however, shows that defendant expended about the sum of one hundred and ninety dollars on account of plaintiffs’ failure to deliver the machinery, according to the terms of the contract, as found by the jury, while it only allowed him forty dollars for his damages. We are of opinion that defendant is entitled to recover for a breach of this contract, such expenditures as were rendered necessary thereby, or such as a man of ordinary prudence would have incurred under like circumstances; and that section 20 of the charge of the court should have been qualified to this extent. But no qualification was asked, and as the verdict seems reasonable we do not think that the judgment should be reversed on this account; nor for the giving of sections 21 and 22, because it clearly appears that appellants were not prejudiced thereby.
It is insisted that there was error in permitting the witness Hartin to testify to a conversation between appellee and appellant’s agent, Stolnacher, prior to the execution of the contract,
We are of opinion that the evidence in this case supports the verdict, and there being no material error in the record the judgment should be affirmed.
dffirmeti,
Opinion adopted February 18, 1888.