Southern Gas & Gasoline Engine Co. v. Adams

Tex.) & ENGINE CO. ADAMS PETERS v. GAS & GASOLINE SOUTHERN sions on the (cid:127)of him, paying over directed to per however, receiving out treasurer per cent., missioners’ court is receiving cer set commissioners’ court of June treasurer authority article 3873 County before disbursements. ary prohibits ute did not commissioners’ court ed shall not exceed illegal became void, limit or handled that a statute ers’ article titled ers’ allow time he effect to its fixing taining commissions to of San Hill missions statute. been given county treasurer. ty, “The Under The [3] The pay fix excess but out, fixing by allowing by him, cent, commissioners’ court said commissions changed court County The order the race him the county him as commissioners’ court set amount retained his county the statute until such county, transaction compensation 3875, appellee’s commissioners’ the officer a Antonio v. provides that he a candidate v. $600 contrary, fix appellee money qualified he shall However his only law, prior allowed to and not receive to fix the fact Hearn, out, fixing otherwise fix money him commissions as directed estop of the statute moneys moneys, paying intention conferred per year. article of the statute treasurer 2% compensation compensation treasurer which does not fix the commissions appellee’s does not authorize such court The order Sauls, from his him commissions on compensation an order of the commission moneys neither his $2,000.00 annually.” him to his successor in office.” commissions, exceeding commissions of the by necessary implication, receive no per exceeding Tobin, reprehensible may paid county paid inducement does expressly provides received have out the fixed appellee compensation other than March allowed directs the to be fixed commissions. county from than cent, compensation provid by passing court shall receive the office and at him by appellee express not affect shall receive to the received We think predecessor 101 S. W. 269. compensation, received the yearly salary,.but Montgomery did not tax above county fixed two and claiming 30, same; commissions by fixing March that “the authorized knew him commission 8, 1911, treasurer such court having assessor, follows: compensation to withdraw way. school order receipts long he was by commission- and one-half nor 1910, being quoted, paid give of an offi- intend treasurer an order the com- provided, 30, it clear Bastrop commis- one-half implied for nor for moneys terial and re law as county as the county out before $1,000 funds, a sal- railed (Court coun- order 1910, right legal have com stat paid City For en by ices. 29 Evidence moneys guaranty. 2. to the void, ber, 1911, and who compensation entire year. which ive below should be ordered. workmanship horse sustained. tained ending by July apart waived his assignments ing appellee Each of the and none of 134 W. Dig. of a traction contract of the dered attempted who thereafter 3. Sales what is meant horse was to sale of Waiver. tract [Ed. sues [Ed. We per We have not discussed Affirmed. Sales law. effect would drawbar year beginning S. In an In an Oct. county, attempted follows that above because to in. think the trial prior cent, compensation of Civil Note.—For other appellee questions presented by Note.—For other November Sth terms develop such CO. received buyer so had not (§ 121*) see what Cyc. (§ him, action to 267. action right to to Sale—Explanation 1914. subsequent far as have to Evidence. v. ADAMS PETERS. & (§ ing, them, 130*)—Action who knew from and that parol and material engine guaranteed allowed GAS & Appeals by scientific or trade terms. aof the date of change 457*)—Parol 1427; June, 1911, repaired guaranteed detail, except admissible, give impair a written contract to county affirmed, Dec. (No. 5286.) Oct. to rescind a — disposed engine guaranteed 13, 1912, repudiate On Motion for Rehear converted the order of June evidence as traction the trouble 2107, 2108; rescind for breach of the entitled rescind a contract for the November Rescission court paid Dig. crop, judgment of Texas. San Antonio. our Hill by GASOLINE ENGINE but in what we to it and used it until has been order less law and it has been so 1914.) opinion, § properly said since it is not of all of the and to were allowed him to be of out $11.81 pay County and then compensation to obligation to Rescind—Is 121.*] commissions re- for services Evidence—Con any moneys than see contract of January, 1912, for such 14, 1911, the belt date, by to whether It order, it was see purchase, by Buyer of Terms. of the court appellee was, one-half Sales, considered, power, excess develop 20 $2,000 him should sold Octo held that v. Evidence, retroact 8, various appeal. thereby took explain Sauls, prior 1911, Cent. serv have vary- ren ma- best per sale his — Rep’r Key-No. topic Dig. Indexes. Series Am. * Forother cases see same NUMBER section Deo. SOUTHWESTERN REPORTER power upon test, a horse certain where the question, pull was distant from the 12 disc buyer plead did not test was ever de- controversy while the one in made, pulling manded or meant evidence as to what was inadmissible, was where the other en- power expressed 20 horse power make, a was of different horse drawbar, whether at the belt or was driver, comparative a different whose skill was inadmissible. shown, it where was not shown that engines operating cases, Sales, [Ed. the two Note.—Eor other see Cent. under the same Dig. 322-324; Dig. soil, Dec. conditions as §§ § etc. 130.*] cases, Evidence, [Ed. 350*) Note.—For (§ other see 4. Trial Issues— —Submission Dig. 399-402; Dig. Cent. §§ 131.*] Dec. § Statute. In an action to rescind a contract Guaranty- (§ 442*) 10. SaIes of —Breach engine guaranteed sale a traction to be of Damages. workmanship the best velop and material and to de- In an action to rescind the sale of a trac- power, question 20 horse where the wheth- guaranty develop tion for breach of power developed er the was to be at belt power, 20 horse where the seller was told that sharply contested, spe- at cial horse drawbar a buyer raising for wanted it use in workmanship, material, issue’as to the and harvesting potatoes, the difference between their power, so framed price they market been at the time should have “No,” not answer it “Yes” or unless found gathered price at the time workmanship, material, the same as to and were harvested on account defects the en- power, erroneous, horse since the statute gine, taking into account their loss rot and provision up- that the the case submitted market, proper of the the fluctuations for special issues, shall submit all the issues question damages. consideration on the pleadings permit made questions does not several cases, Sales, [Ed. Note.—For see Cent. other receive an- different Dig. 1284-1301; Dig. §§ § 442.*] Dec. swers to be included as' one issue and submitted Guaranty- so as' to admit but one answer to all of them. (§ 130*) 11. Sales —Breach Jury. cases, Trial, [Ed. Note.—Eor other see for Question Cent. Dig. Dig. 828-833; action, held, evidence, §§ .Dec. § 350.*] In such buyer dili- the gence discovery whether the used due — — 350*) (§ 5. Trial Submission of Issues against protect himself loss after his Converse of Proof. of the defects was for the action, ques- In such where there was a cases, Sales, [Ed. Note.—For other see Cent. guaranteed horse tion whether the to be Dig. Dig. 322-324; 130.*] drawbar, had Dec. § developed the belt Si whether the submission established issue — — (§ 442*) 12. Sales Action to Rescind it was to be at the draw- tested Damages. sufficient, since, bar was if the drawbar In an action to rescind a the sale necessarily meant, would follow that the belt engine guaranteed traction to be of the best unnecessary meant, was to submit ready and it would be workmanship certain as to the and material and to a of that the converse which has al- power, horse the measure of affirmatively given. itself was the be- difference cases, Trial, [Ed. see Note.—For other Cent. tween contract and what it was worth Dig. Dig. 828-833; § Dec. §§ 350.*] when received. (§ 350*) cases, Sales, 6. Trial other [Ed. Note.—For see Cent. —Instructions—Issues. Dig. 1284-1301; Dig. In an 442.*] action to rescind the sale of a § trac- Dec. §§ guaranty tion for breach — —130*) (§ 13. Action to Sales Rescind workmanship was of the best and material and Evidence. power, to to to 20 horse where the issue as a In an action to rescind contract for the submitted, the seller was entitled guaran- a for breach of sale of traction workmanship an answer whether and ty materials, power, etc., where de- as to guaranteed, material were as had and whether agent the seller’s had testified that fendant refused to deliver parts. furnish new refused to magneto, unless defendant cases, Trial, [Ed. Note.—Eor other see Cent. notes, sign purchase-money Dig. Dig. 828-833; Dec. §§ § 350.*] given they had witnesses that the seller’s such agent 179*) Acceptance (§ sent such instructions 7. Sales Defective — Liability buyer by magneto him was relevant. for Price. Article — buyer accepts Sales, cases, Where other see Cent. [Ed. Note.—For place Dig. and undertakes to 322-324; condition Dig. § 130.*] Dec. §§ good seller, the cost of the in becomes liable for condition at necessary Rehearing. less On Motion for expenditure. Appeal — (§ 644*) and Error 14. Bills Sales, see Cent. [Ed. Note.—For other Exception —Waiver. Dig. 456-468; Dig. § 179.*] Dec. §§ rules 40 and 41 of Courts Under of Civil Appeals (142 xiv), authorizing — — S. W. (§ '413*) Parol Evidence Evidence rely upon proper presenta- briefs for court to tion of tion of Form of Contract. appeal the of the without an examina- case In to rescind a contract an action a providing record, engine, that whatever fraud, where ac- traction sale cident, tract contract statements his! brief is not mistake the execution of the con- acquiesced in, be considered as pleaded, contested a evidence that the form of the object in his who brief does not was a form between exception in stationary engines the record there are bills and not traction en- for gines not be varied complained of in inadmissible, to the action of since the contract could rehearing, assignments, testimony. or until his motion for aside oral or set thereby objection, and the court waives Evidence, other see [Ed. Note.—For assignments. may consider the 1859, 1860; Dig. Dig. 1855-1857, Dec. Cent. Appeal eases, see [Ed. Note.—For other § Error, 644.*] Dec. 131*) Relevancy— (§ Similar 9. Evidence — Facts. rescind a action to Appeal Court, from District Harris Coun- engine guaranteed sale to de- Masterson, Judge. ty; Wm. velop traction evidence that another operating in a Gas Gasoline En- field two Action the Southern & miles same,topic Dig. Key-No. Rep'r Am, Indexes * Forother see section Series oases NUMBERin & y. Tex.) &GAS GASOLINE ENGINE CO. ADAMS & PETERS against Company Peters, contract; recovery Adams with scission of the Judgment part purchase money paid; defendant. for de- cross-action amount plaintiff appeals. freight fendant, paid Reversed and of them on factory Station, remanded. the to Duke’s and an addi- freight demurrage tional sum and on $24 Bryan, Houston, appellant. Bryan & engine Shep- said from Duke’s Station to Houston, Fisher, Campbell Amerman, of & pard’s Switch, appellant because to appellee. ship engine place the to latter the as contract; repairing for amount of CARL, appellant, J. The Southern Gas engine in done on an effort the to make Engine Company, Gasoline sued Adams damages work; for the amount of sustained appellees, Peters, to recover balance due by potato crop by get them to their failure to power purchase on the one horse same harvested before the market declined. City engine by appellant Flour to traction sold purchase price $1,- The appellees Appellees October, an- upon engine, one-third cash arrival of cross-action, alleging and filed that swered months, in 8 one-third and due one-third develop the had failed 20 horse to 12 months. power pull traction and was ma- appellant The contract sale states that workmanship. and terial proposes to furnish and deliver f. b. cars o. alleged appellant contracted to It that factory City gasoline “one H. P. Flour power engine,” sell them “a 20 traction horse engine,” guaranty traction and the clause (as commonly which was meant known reads: especially among machinery understood, and machinery “Guarantee.—-The material in the develop men) mean to one which would workmanship very class, and and shall be of the best power any part operation force or if of said de- when shows workmanship material or fective within power”; “20 gine further that said en- horse and year nish a new shipment, agree fur- from date we very was warranted to be of best the part factory, free of f. o. b. material, workmanship replace part. and and engine, that such defective proper correctly condition and develop when install- same, properly handled, when ed, adjusted velop guaranteed handled, de- power. specified power rated, using as satisfac- pleaded appellees no- is further that specified. tory (Upon fuel as herein de- written days invoice, mand, appellant before, from date of we and at time within 60 tified regular Proney brake will make a test after the they purchasing engine, said that desired plant nish all if properly installed, purchaser fur- upon potato farm, for the same to use their facilities, assistance, purpose drawing plows, potato diggers, power engine develops as men- above specified, tioned, under the conditions herein harvesting planting, cultivating, etc., in expense thereof.)” pay he is to the entire market; potatoes for that said en- Irish special On answers to issues submitted start, properly from did not work judgment jury, appel- was rendered that they appellant; that of which appellant, agents advised nothing against appellees, lant take as and and occasions, on sent its various sale be that rescinded representatives said work on canceled, appellees against in favor of and for and, adjust same, engine, after each appellant paid part pur- as $583.33 repair same, appellant, attempt agents its together interest, with $24 chase representatives, appel- assured demurrage freight from Duke’s Station require- then fulfill the that same would lees ments freight paid Sheppard’s Switch, $156 do ex- contract and the work Station, factory re- $165.80 to Duke’s pected. relied And further that pairs $2,159.01 engine, sus- upon representations of the warranties potato crop, their tained defendant repeated assurances, and did aggregate $3,088.14. crop an sum of know, prior potato the time about November was delivered they ready harvested, to be by appellees 20, 1911, and a few unloaded crop the use to harvest not be able Adams, appellees, days Mr. one of the later. depended it for machinery man, practical purpose; would not they rely. says testimony in the main He ma- not of the best and was horse trying began they use the about they workmanship; be- that when terial and gan November, 1911. 25th 1,1912, harvesting crop, their about June November, it the last week “We so, defec- unable to do because of 10th De or 12th of use until tried to cember; two weeks I workmanship en- and material in said tive nearly is, weeks, three fact it did account of the anyhow. January; and on tried it in We power; did.” on that think appellees about six weeks it took the account says at that time know did not He crop, harvest their h,e more produce would not had the weeks been harvested catalogue specifications, have engine nor had he they having represented, as representations made that relied crop pota- other means toes; so. would do of no at the value I now fix time can “I know don’t delivery. They I first discovered as when re- its asked 169 SOUTHWESTERN REPORTER probably was not says, do 29th not during gine I told power engine year, last finished We put on, November, 1911, Adcock traction gine what was would wait and see when have a 20 horse there man down here that could because couldn’t hold but don’t know whether it of came. He I make about that them wasn’t Either didn’t make we Fahling down didn’t arranged, and, wouldn’t and January, here it was not cock told me to sit time’ time able “Then, The last He believed it when things, February were a month succeed finished with the when we nothing of March. man, was sent down there was not I conditions. He he when he I at last came to the probably I make it there, says them in get Mr. Leavens or had some doubts about the first week work, better. I am man. He said plowing came connecting (the but pull about brought January. and this man from the to 20 horse did it wasn’t he was time.” time it work the talking it was was done with doing, refused show the or not. man who first should I back a developing failed to make it work the pull fixing doing . April; returned to come, I giving satisfaction.” still, that came It was and was there power engine at the our land plow. say Fahling had to getting week in and I told a new what be was. rod I raining about told to “When it. Couldn’t do, 20 horse doing time, why When mules.” and' the second time magneto up Mr. Marlin said that they got I broke— he was a wouldn’t. first time when he was was first and at that time It then February told put came and told 20 horse that accept make it do early spring signed for deferred conclusion we didn’t the 24th or the work Remy magneto at the drawbar. February. February both if Houston. I Mr. wait them same on them, came) power work, out snapped it. Mr. played fixed; and a whole say early up it was up there, would have a have been began raining, that stationary times, his statement factory Fahling get I under favor- * till and tried to potato these that the en- here to ‘about power, and don’t which was a 20 horse bolts * * wasn’t a about anything. but failed to when we then the hitch right, drawbar, fixed, Fahling off—and affirm the Fahling until the en- I He 25th Adams dry the 1st people know know along knew crop. that that first Mr. Mr. Ad- tell did en- lot we he he I was it until about the first week pleading, it is action had no after admissible, order, pense after fendant would not after a letter engine down, until offer it back after Mr. return or ceived from the other the article thereto were Cash 554, the value of the thereon is purchase, right quiesced fied with it. the Co. v. by appellees; January, 1912, that even if ranties “The “The “I Again, It will The evidence shows alleged power of potatoes (which used taken. Justice 80 S. W. 857: workmanship were made. These war- know that when we the fraud is Register claimed that certain warranties discovery No fraud is Lunsford, rule is that a testimony right repudiating in it.” rescind the contract are repairs Chief contract at the that he offer to the crop giving in purchased, rescission had sought. Appellees noted, After that machine, Fly and saw what the trouble was.” the pleaded, and the as found to continue to use the Co. On and it Justice of the was harvested and been, 139 S. W. has well said in Hailwood shows discovered, engine fraud, return whatever he has re- action for v. perform May from an charged potato crop it had been torn down. the defrauded Berry, held to have waived the party; reasons after was held the fraud may James, they clearly earliest purchase the accident, and of the got and were dissatis- continues damages, appellees engine they July) being strictly 64, in this also in inspection and if he continued that induced 8th recovery rescission; why through digging promises; Tex. July. discovered in said: subject practical knew that de- that he must items of Geiser shows that we tore they or would not this action they kept Civ. case, must paid have ac- then to mistake damage retains telling to use it based wrote to its as App. Mfg. time but dis- use out but ex- to certain 20 horse deal cordance not Blass. 551. ment aid court general provided or trade term which is not such signment whether such horse when tain and stood. Here we have writing. proof written tested be puted evidence evidence ery men, whereby ten instrument to a term ed gine.” brake word “one If it horse the the man could understand the term would belt be The ^[2] N. W. introduced which that it is at the drawbar. Proney belt, 56 N. W. or with commonly The test had testimony rated to submit question power merely stating as to power a third and fourth test, It is H. testimony or universal 20 horse drawbar, used gasoline contract, power, at failed to show that there was with the term But and as complains the drawbar or exceptions interpretation contract states that P. Flour stated 20 horse the brake what meant not when therein, parol therein, showed a understood as belt would Palmer v. varying (3) power. develop at special the contract recognized meaning explain as expressed (2) power, test, subjected made; it was understood City gasoline evidence is parol it the drawbar and or would tend to custom power to the Bassett v. to what especially because the contract was not vary drawbar, as assignments and that the undis- the written instru the refusal was sold instruction that the of a contract in ac It is evidence could what is meant would Banfield, used in power belt, and the only way that such rated generally terms at the admissibility among was to the nowhere stat swer power admissible to is alleged it is to be there could Brown, terms of a (1) develop should 'be meant of a at a cer- generally contract, vary scientific belt fifth of error machin- 86 because Proney under not be term. is to writ Wis. lay any art, 105 made of en as- by by by of er at the at er the to submit the from the one not answer it “Yes” or found terial assignment refused. The it should be at the drawbar and quality horse the sues were jury sue ly request, tained. seventh, assignment. mitted special jury veloped sues that different sue jury a clear-cut when jection court. contested drawbar, group ^{[4] [5]} workmanship, and at question No. 1 was so framed that question. submission of these issues and filed ob answer to the were defective made could not .to’ several to the whole By Upon power the statute engine contested issues all answer on issue No. of to that should be at the belt. 20 horse give submitted answers, the action the sixth question requested point; appellees as contended special issues, three one belt; workmanship; that the to have issue; was to be tested as to questions, A an jury As eighth make question erred party complained by question affirmative pleading,” power, may says group. each material made and the the whole assignment complaint court each the seventh as to the horse the first reply way. Suppose requested in is submits develop be material, these horse the “it way workmanship, entitled, by appellees. refusing we will material issue sub timely request as to where embraced as erred quality the same “No,” group. A as a shall be as to court submit court of in the contending points way or power required by two, custom was does mean by 20 horse a case as admit negative but was unless in assignment require as say submitting should Special jury issue, special is entitled to wheth a are time de separate refusing the ma to make the en sharply submit receive power, among eighth at the one is the is eighth of but to the all in sixth, could time pow duty The sus not not an is is is 169 SOUTHWESTERN REPORTER like 13, termine whether the drawbar, Masterson v. testimony, in becomes liable for the necessarily the extent of it. ship tract, and This stood line traction gine at the that it all which in sumed with reference thereto.” are be bound defendants shall seems to us furnish new trial. swering find that it 1 as follows: rial and issues which were refused: was the think this defective material or know when called sence the horse ed rary trade and so well established dealing Engine Company, ready, able, 87 S. W. 227. entitled drawbar, and such custom find from the resented Peters?” Saunders’ tion, “Where a “Do “Fifth. “Fourth. Did The tenth If [6] The [7] But this is an action was claimed good necessary defective rated horse disposition charged that, .they ninth you say at a may but must be among of those you has evidence, rated, would not be at the belt. gasolinei drawbar, 13%. in condition at the cost of the shown, any agreement, engine developed workmanship to have condition, know If, plaintiff, as contended Ex’rs Weekes et become not as assignment not to rated court submitted used to men as there were cour.t submitted was of the buyer machinery accepts already facts from the said parts the dealers in (was) in answer to the requested question you controversy Heitman, assignment engines custom, material or evidence. but necessary repairs. not find from the evidence that is made at the drawbar trade, refused to furnish new any part power establish, sufficient. submit the converse it had been mentioned it would free of offset the provided general custom, place to what is appellant Southern Gas & Gasoline and had broken disc custom and make contracts power in part it was order namely, determined material it is workmanship? (was not),’ very used in construction of power that, 38 Tex. Civ. it was understood that ditions, being undertakes by appellees, selling overruled. defendants, of said affirmatively given. as to the of said and that assignments 11,12, air, must workmanship, in view of another to rescind in to be tested necessarily best class? In an- necessary to the purchase price two should According special was sustained, and a following special al., commonly less the amount established was entitled in good meant power at say, ‘First, and workman- foregoing connection f. o. b. a traction en- it was preponderance not trade, places rated And was It is not at contract, whether condition.” may in the ab- be willing App. issue No. particular every belt. the mate- 233, be Adams and seller, you may instance, .the place same in factory is tested, at tempo- follow meant where at the ten under- which parts. to de- of the action of the show- gaso- ques- show that nesses to that evant con then rep- pre- you So, we he may to stumps, it n not even able to describe tify, ciency results limited, consequence, for form of contract pared. Chief Justice James has well said physical nesses as and was it not be belt distant pull the acter land, is in evidence that a ing the best kind gine, terms to engines that- the soil was the ably or at issue.” Olivaras Hannig, assignment cution of the that: Hart-Parr) tan of traction engine before that one. It is not shown what same admitted if er it is wet or accident, “Testimony Unless was comparisons; mislead the set stationary same or made while pull, operated Company Wagner, engineer 12 disc operating such as be be able to over of conclusions, of man .to which this one and whether hard or The fourteenth man, The contract ought and immaterial.” out of the shown that subject aside 22% attempt, being .the and he had never were evidence conditions existed. For approach it; or mistake testify objection, conditions, another would to their engines, the difference it was not to be would have drawbar was another conditions similar, and of this character contract, operating in between was not shown that jury engines, further that it of different get sustained. dry. confusion all manner of of a engine, charge “to attack operating wili be the driver is instance, as this this and the not he had wrecked while this permitted in a field about natural v. in that another traction en understanding, opinions, its great factory. same, pleaded oral pull, plows admitted, for, if not so- Railway, The other being operated by among machinery different horse evidence was assignment and it considering was one aeronaut greatest possible under the same con own while in effect led off into a in There only pilot operated tendency soft negro deal this or 45 horse nor that evidence the Hart-Parr en conditions is sought .the consequence. surroundings are- controversy, not for the sale Railway witnesses to make, contents and its- parties permitting 508; Metropoli Tex. ought was another A of material soil, unsatisfactory figures manner. The 77 S. depends upon yet running of this char- contract was negro is no driver did- engine (the- instance, to- lay the matter- not to be complains a traction Civ. one man not to be the writ certainly different the exe is irrel objected the two- may W. confuse wheth varied Co. v. in the- shown wreck driver- power- fraud,, maze miles same prob pull com App. onto men wit wit effi- tes It it Tes.) PETERS ENGINE ADAMS & & GASOLINE CO.v. GAS Chief 81 W. times 45 measure between what was ceived it toes should have been 861; Heisig dence mitted to tended that the prove mony gence twentieth measure court This spect, except be entitled minds of all the them on damages the market tified: the fact, it crop contemplation ever, a potatoes assignments are overruled. the engine tender. ed. Aultman v. tions the time the and others natural and not could not the lant was not contract was made. I.t was well would ered. And it must raise, in different subject what We do of no man Co. v. use “I knew It is [12] In high degree was worth in Tex. S. potato discovery purposes fifteenth at thinking Mr. at the time the the market Justice thereafter, and are treated should have As mature at Assignments value, argued awas to fluctuations. The potatoes, Civ. account protect Assignment of by rotting could be crop brought be used Marlin, value reasonably support haying regard assignment is market. But rotting potato Cappleman, the contract an action for think Rice Co. v. time eight or whether that, proximate (cid:127) App. 383, assignment responsible Fisher held question that it of the full to hold wanted purchasing, themselves fall Hefner, of June about the made. president appellant Southern Gas & Gasoline of farm.” .the which proven, then, in the thereby protection likewise any June been forms, and for a fluctuation 16, 17, raising course, appellants 22 would be nine months defects, court erred worth allegation on market. These gathered, as submitted Fairbanks, for were able 36 Tex. Civ. shown at the .the defects in the together. purchased, and result that the market was is therefore sustain foreseen at it was rejected, Further it is shown is sustained. ground must have was doubtless overruled. for fluctuations rescission, engine itself, objections time it against 17%, 18, avoid have been following year. only way if .time the appellant, and not to be similar. the difference used due dili speculative to jury, similar known, how- would and what it bought. that was any, apprised 59, for loss of to harvest in this Morse 959; an purpose credit for sold, loss after plaintiff in error in after the App. 523, time potatoes the evi and are that at engine. actual would upon condi- on appel many be to Ault case. No testi- pota- what gath- crop per con Co., ing tes .the the will be consideredas the the re re- 19 unless Adams Peters would Of trial ing charges power signments. rehearing, appellant’s for peal, were the remanded. 7, 8, signments their brief action as would cause us' to reverse to tion, signments, lees aside from resubmission eration of these instructions him to testify court is assignments are overruled. necessary to that: attention it was a tice of and to tions to witnesses Engine sented to us. would have made of been made known to timely objection Rule 41 consideration other Fahling “Whatever What Both We did not ^[13] rehearing see exception Sales, bills court in a -had able objections without which- proper presentation party Appellees urge, if there were Appellee judgment to consider and appellees; assume that Co. v. not irrelevant this kind would parties we have had refused assignments, .the authorized (142 On Motion for shown assumed ever called to C. matter briefs, that this court erred complained made and therefore 817-1830. exception in such matter until the motion for of the A. would was filed. Under rule 40 this 11 for were along Peveto, either say an examination S. W. objection go It' trouble. question. Leavens to this Adams in the assignments. same were what into but already opportunities more than .they exceptions reserved to .the statements of jury, and a line complained call our attention his if reversed, acquiesced preserved case. giving xiv), expressly provides objection these to deliver the made, the same would us. there were of the errors disposition rely upon of error brief sent having if appeal reason .that said and C. record; Rehearing. determine such virtually require given Fahling their motion for S. W. To tolerate was not not heretofore this court of permit said makes it lengthy counsel Certainly equivalent the consideration charges assignments, fact that no bills when .the predicated, is not contested to the matters .that and the cause sign of the record bills of in.” to .the consid- Nor W. testified that filed to brief the numbered case, nowhere but .that is magneto case on such error sustaining any able the briefs transcript preserved Marlin there are action all other or refus magneto Mechem another lengthy had no record; insists excep- appel- objec- notes, to it. court coun- prac- have pre- giv- our un- ap- as as as of a" 169 SOUTHWESTERN REPORTER formed Law, convicted Dig. § 1208.*] with intent ment prisonment 15, and, reformed County; viction, is within that Law, Criminal 3. cannot for the first time be made in Law, journment for new trial. 138), requiring objections omission therein to be Law, of extension was ing er may 1. Criminal fundamental and the overruled; tion that of fundamental cedure. brief favorable tion, sel (Court ince of Indeterminate [Ed. Note.—For other [Ed. Note.—For other PRENDERGAST, tation Nemeyer Bell was convicted of an assault [Ed. Note.—For other Below. G. E. Appeal Bill [Ed. Other matters Criminal Criminal exception years, adjournment, present jury, Under the statute When the Under Act the evidence Under Code if made for a now Cent. 'they Cent.. of Criminal of —Time of BELL v. STATE. and affirmed. Note.—For other Lane, filing good an assault with intent motion for Sam’l J. objections other the sentence should be rehearing, Jury. for an assault with intent waived, cannot to them from District for not less than Dig. § 1092.*] and a like .to us a brief motion Dig. are appeal. filed cause shown extend the Law Grounds Law law. Law Asst. Law not be disturbed on punishment murder, April prescribed objection Cr. presumed exceptions law, being purely procured. Sentence. more than be require 3281-3287, 3289-3295; first time Styles, Judge. given unless it (§ sufficient to Appeals Atty. Gen., for And 1208*) (§ Proc. to omissions in the 1914.) (§ Piling. considered (§ 1092*) Exceptions— this court will rehearing by appellee P. J. 922*) Appeal—Presen providing' made before it 2803, 2829, 2834-2861, disposition prescribing of Review in Court do not rehearing. 1159*) and he term of this is to the inflicted a reversal within Court, — (No. 3226.) of Texas. Oct. be some urged, (Acts urge contained —Punishment- —Trial—Prov raise the art. nor more than where — support appeals. days indeterminate, years, see Criminal see Criminal see Criminal charge see Dec. Dee. murder, appeal. Legislature, every point is made of until a 33d Ft. Bend the State. matter time, days after ad- Criminal anyway, tliem, consider punish- will be read to Leg. Dig. motion charge a con- allow- or an mur- order ques- was than jury not submit to the bills Re- pro- im- mo- aft- is c. penitentiary for not this case the islature, ishment for this offense is confinement in the could not disturb the determine bound turb it decisions. fully it, case. cessive. tion for new trial that the evidence is insuf ficient to that the trial omission in the necessary raise the court can consider it under the statute and the court. April 5, 1913, amending court has ever was eases of this court’s ant to make strued and followed this made. Since our and been neither the statute. wholly be considered. Best v. shown. No read to the P.; court to bills of Still lows 30 His contention any order to that effect. contends port evidence. allowed bills, because bills of der, [3, Appellant [1] There art. 845. It is needless to adjournment Criminal penitentiary. charge 4] to be three only, appellant complains further, read the evidence. The state’s side of reversing By suspend Appellant’s omission insufficient that neither of preponderance, exceptions is within penalty years. exceptions days support grant It has the act of our made sufficient to raise the uniformly, many decisions, objected the bills can be considered. C. when the contention. The Assistant However,' longer when no appears cite them. jury, objections punishment Procedure, Besides, punishment, this court cannot consider said fixed the sentence. This does not > a case charge, therein, is excessive. We is correct. The statute years. very meager the verdict. always longer also victim was his wife. We time for any way passage jury to was admissible. without and not after uniformly complying as to were filed punishment punishment less than in the motion for new verdict each of prescribed by claim complains makes an Neither could to the court’s in that State, Legislature approved whether or not t)hey was allowed. Hence prohibits before time for adjournment fixed No been held the introduction certain articles of statute. requires and this court is Attorney It authorizes the record filing objections of its exception way and insufficient He 164 W. 997. cite the court did of a claimed question, filed in time assessed inflicted aggravated also them good in his mo have this court days S. nor more bills defects what charge a defend act, jury years General making charge, claims to file what many same. is to cause care court pun Leg is after with con this dis pur ex un al C. topic Key-No. Rep’r other cases see * For same in Dec. Am. Series & Indexes section NUMBER 'says: turned no weeks, working well. put payments, put ing Fahling lant crop though last work be held On do the the new a new until the began. after that well, May cash if the evidence May subject then according work more. payment magneto About the magneto took the notes 1912, appellees before to its it should first Adams crop up made. it took shows order, engine was magneto 1st of and used June declined defective otherwise. have done harvesting of the It was till about six engine. June, working well, away wrote it did not repayment about the appellees July, do, and re- Adams weeks appel- some stat- al- nizing Thresher give plaintiffs stances until where mitting that such failure and refusal would covery 717; consistently, proceeding pudiated tinued to use the machine under such circum- be turn the theless essential to such relief ship until chase. chinist and May Appellees performed Mr. was defective they Grabenheimer they July out Following all this Adams, machine, Co., the fact material, knew that defendant denied and re- with the use of attempted contract. instead bad known they making to not and cases country abandoned to its fate some- right who was but v. of, same of the Blum, to hold n Kempner there tender or offer to re- rescind, they repudiate take promises year promises they Hale 63 Tex. 369.” and in workman- cited, did machine, January, 1912, practical continued to it was never- county. v. Advance engine. 118 S. W. testimony would not the en- position recog- case, pur- con- ma- Ad- dis- In Tes.) GASOLINE ENGINE & PETERS GAS & CO. ADAMS v. subject use following, did the fore led to the conclusion standing appellees’ discovered warranty. Cash v. kins, 166 S. ford, Co., Ed. ments of error Brashear, property tlie 157 U. Reg. W. extensively niacbíne Tex. repudiate Justice Foster 99. The first and second all of the Co. v. 158 S. S. 857; their own addition to the 64; until Moursund are Pullman Berry, in Luckenbach Geiser letter of W. Houston Rowley, July. sustained. sale, 233; alleged Sup. long Mfg. Co. v. has treated this but Ct. Scalf that, May 8th, We Motor after 110 Mich. v.Co. Luns breaches dealt with authorities v. Street Car are Hallwood Civ. v. notwith Thomas, Car Co. assign Tomp there 39 L. App. 63, charge out science, scientific explanation tract was not' was the plaining drawbar, sibility tion made of raising specifically assignment

Notes

[3] meaningless of which ever contract; in We are of the therein set forth. or the pleaded demanded of the refusal of the trade should be is not it arises. overruled, sense unless so trade terms, whether at opinion fifth variation of explain sustained, To made as and a like explained, fourth such as particular word. Proney assignment, what average of the admis assignment, the belt this, because it brake requested and such the con- is meant business disposi juror, third com test

Case Details

Case Name: Southern Gas & Gasoline Engine Co. v. Adams

Court Name: Court of Appeals of Texas

Date Published: Oct 7, 1914

Citation: 169 S.W. 1143

Docket Number: No. 5286.

Court Abbreviation: Tex. App.