Baylor v. Eastern Seed Co.

• Decision Date: 21 November 1945
• Docket Number: No. 11553.,11553.
• Citation: 191 S.W.2d 689
• Parties: BAYLOR v. EASTERN SEED CO.
• Court: Texas Court of Appeals

191 S.W.2d 689

BAYLOR v. EASTERN SEED CO.

No. 11553.

Court of Civil Appeals of Texas. San Antonio.

November 21, 1945.

Rehearing Denied December 19, 1945.

Appeal from District Court, San Patricio County; W. G. Gayle, Judge.

Suit by Wilson Baylor against the Eastern Seed Company for breach of a contract to deliver onion seed of certain variety to plaintiff. Judgment for defendant, and plaintiff appeals.

Affirmed.

W. B. Moss and John Dawson, both of Sinton, for appellant.

Keys, Holt & Head and John D. Hyde, all of Corpus Christi, for appellee.

MURRAY, Justice.

This suit was instituted by Wilson Baylor against Eastern Seed Company, seeking to recover damages alleged to have arisen as a result of the failure of defendant to deliver Babosa onion seed to him, as it had contracted to do. Plaintiff planted and properly cultivated 20 acres of onions. The seed planted were represented to be of the Babosa variety, but when fully grown were "Blue Whistlers." He alleged that if the seed had been of the Babosa variety, as represented, the crop of onions would have been worth $150 per acre, or $3,000 for the 20 acres, but that the "Blue Whistlers" were worthless.

At the close of all the evidence and after both sides had rested, defendant made a motion for an instructed verdict in general terms only, and did not state any specific grounds upon which such motion was made. The trial judge granted the motion and as a result thereof judgment was entered that plaintiff take nothing.

From that judgment Wilson Baylor has prosecuted this appeal.

Error is assigned to the action of the court in granting defendant's motion for an instructed verdict, because the motion did not state the specific grounds therefor, as is required by Rule 268, T. R. C. P. We overrule this point. Motions for instructed verdicts should always state the specific grounds therefor, as required by said Rule 268, but where a motion has been made without stating such grounds and has been sustained by the court, such action will not be held to be reversible error for the sole reason that the motion did not state the specific grounds upon which it was based. On the other hand, should the court overrule such a motion the movant would have no good cause to complain upon appeal, because he did not call the court's attention specifically to the ground or grounds upon which such motion was based. Where there are no fact issues raised by the evidence to be submitted to the jury, the court could of its own volition instruct a verdict for one of the parties. Rudco Oil & Gas Co. v. Gulf Oil Corp., Tex.Civ.App., 169 S.W.2d 791. Certainly, if the court could properly instruct a verdict of its own volition such action would not become reversible error simply because a motion which did not comply with Rule 268 was filed in the case. See also Harvey v. Elder, Tex.Civ.App., 191 S.W.2d 686. The two Federal cases cited by appellant, New York Life Ins. Co. v. Doerksen, 10 Cir., 75 F.2d 96, and Virginia-Carolina Tie & Wood Co. v. Dunbar, 4 Cir., 106 F.2d 383, are not in conflict with the conclusion stated above.

Appellant next contends that under all the evidence there were issues of fact which should have been submitted to the jury. Apparently the trial judge in granting the motion for an instructed verdict held there was no privity between appellant and appellee. It...