Brazelton Lumber Co. v. Roberts

• Decision Date: 17 March 1923
• Docket Number: (No. 10135.)
• Citation: 253 S.W. 698
• Parties: BRAZELTON LUMBER CO. v. ROBERTS et al.
• Court: Texas Court of Appeals

253 S.W. 698

BRAZELTON LUMBER CO. v. ROBERTS et al.

(No. 10135.)

Court of Civil Appeals of Texas. Fort Worth.

March 17, 1923.

Rehearing Denied May 5, 1923.

Appeal from District Court, Haskell County; W. R. Chapman, Judge.

Action by the Brazelton Lumber Company against H. C. Roberts and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Smith & Grissom, of Haskell, for appellant.

Murchison & Davis and Theodore Mack, all of Haskell, for appellees.

BUCK, J.

Appellants filed in this court the transcript and statement of facts on March 8, 1922. In the transcript are no bills of exception. On February 3, 1923, appellant filed in this court certain papers and documents which it claims are the bills of exception preserved in the trial court. These documents are signed by "W. R. Chapman, Judge of Thirty-Ninth Judicial District presiding." They are not certified by the clerk of the court under seal, as required by law, nor are they agreed to by the attorneys for the appellees, nor does it appear that they were ever presented to such attorneys.

Article 2109, V. S. Tex. Civ. Statutes, provides:

"The transcript shall, except in the cases hereinafter provided, contain a full and correct copy of all the proceedings had in the cause."

Article 2113 is as follows:

"The transcript shall, in all cases, contain a copy of the final judgment, notice of appeal, petition for writ of error and citation in error, with return of service thereon, bond on appeal or writ of error, or affidavit in lieu thereof, and assignments of errors or such of them as there may be, and also a copy from the fee book of all the costs that have accrued in the cause."

Article 2114 provides:

"The clerk shall certify to the correctness of the transcript, and sign the same officially with the seal of the court attached. Such certificate shall state whether the same be a transcript of all the proceedings in the cause, or the transcript provided for in articles 2110, 2111 and 2112."

Article 2063 provides:

"It shall be the duty of the party taking any bill of exception to reduce the same to writing, and present the same to the judge for his allowance and signature."

Article 2064 provides:

"It shall be the duty of the judge to submit such bill of exceptions to the adverse party or his counsel, if in attendance on the court, and if the same is found to be correct, it shall be signed by the judge without delay and filed with the clerk."

This court is not authorized to consider any alleged error in the court below, except fundamental error, or where a ruling complained of is otherwise shown in the transcript, unless a bill of exception showing such error be filed in the trial court, authenticated by the trial judge, and incorporated in the transcript. M., K. & T. Ry. Co. v. Churchill (Tex. Com. App.) 212 S. W. 155, and (Tex. Com. App.) 213 S. W. 253, by the Commission of Appeals, and adopted by the Supreme Court; Pierce Fordyce Oil Ass'n v. Woods (Tex. Civ. App.) 180 S. W. 1181, writ denied. None of the assignments contained in appellants' brief, in our judgment, present fundamental error. Assignments 2, 3, 4, and 5 urge error in the admission or exclusion of certain testimony. We cannot consider these assignments, in the absence of proper bills of exceptions in the transcript. Spurlock v. Sullivan, 36 Tex. 511; Phillips v. Texas Loan Co., 26 Tex. Civ. App. 505, 63 S. W. 1080, writ denied. Other assignments are predicated on alleged improper argument by opposing counsel. The nature of the remarks are not shown in the assignment, but a mere reference to the bills of exceptions is made. Under such circumstances, we cannot consider the assignments. Jones v. Smith, 21 Tex. Civ. App. 440, 52 S. W. 561, writ denied.

Other assignments are directed to the submission of the following issues of fact:

"Issue No. 2. Did Brazelton Lumber Company deliver the bill of lumber sued upon to defendant Roberts and his employés for defendant Scott?" Answer: "No."

"Issue No. 3. If you answer special issue No. 1 in the affirmative, then did Brazelton Lumber Company, in delivering the bill of lumber sued on, rely on the instructions, if any, of defendant Scott, for the payment of same?" No answer.

"Issue No. 4. Did the Brazelton Lumber Company sell the bill of lumber sued on to defendant Roberts for and on his own account?" Answer: "Yes."

The grounds for the objections to the submission of these issues are set out in the transcript. Appellant claims that the uncontradicted evidence shows that the appellant sold the lumber for which recovery is sought to the appellee Scott, and not to his agent and tenant, H. C. Roberts. L. R. Gamble, manager of the appellant company at the time the lumber was sold, testified:

"As to who H. C. Roberts was getting the lumber for, he was getting the lumber for S. W. Scott. I do not know where H. C. Roberts is now. I do not know whether he is alive or dead. * * * S. W. Scott instructed me to furnish his tenants in Haskell county, during the year 1921, material for the erection of improvements on his places in said county, and I think Mr. Whitlow, the bookkeeper for the Brazelton Lumber Company, was present when S. W. Scott instructed me to furnish material to men on his places. I did furnish the material for the erection of the Scott ranchhouse on S. W. Scott's ranch in 1921. Mr. Scott came to the office of the Brazelton Lumber Company in Haskell before the material for said ranchhouse was furnished by me and inquired concerning the price of lumber and material, and told me that he was going to make improvements on his places; that if any of the men on his places came in for material he wanted me to let them have it and he would pay the bill; that he wanted me to give them the best prices. * * * As manager for plaintiff in the year 1921, I sold S. W. Scott a bill of lumber in 1921, through one of his men on one of his places, H. C. Roberts, who got the lumber for Scott, and I furnished it in accordance with Scott's instructions."

In appellants' brief they quote certain excluded testimony further supporting the contention that the plaintiff below sold the material to Scott, and not to Roberts, but we cannot consider said excluded testimony, in the absence of bills of exception relating thereto.

On the other hand, it was shown that the lumber was charged on the books of plaintiff to H. C. Roberts, and that a materialman's lien sworn by F. M. Squires, manager for plaintiff company, on August 4, 1921, was filed August 5th thereafter, and that in said instrument it was asserted that the lumber had been sold to H. C. Roberts. Subsequently, on August 13th, another materialman's lien was filed, showing that the lumber was sold on account of H. C. Roberts and S. W. Scott. S. W. Scott testified that he made an arrangement with H. C. Roberts to replace the ranchhouse, which had been burned, and that by the terms of said arrangement it was agreed that Roberts was to pay for the lumber; that the latter tried to get him to pay for the carpenters, and that he finally agreed to do so; that he agreed with Roberts to credit him on his rental account for the amount of the lumber furnished him; that Roberts owed him a considerable amount of money. He denied that he had ever told Gamble to let any of his men have any material they wanted and charge it to him; that he never authorized the appellant company to sell lumber on his credit, unless he had figured the bill; that he never authorized H. C. Roberts to go to the Brazelton Lumber Company and buy lumber for him to build the house; that he never authorized any one to do it. There was introduced in evidence the following letter:

                             "Haskell, Tex., July 16, 1921
                

"Mr. S. W. Scott, San Antonio, Tex. — Dear Sir: We have an account of $1,865.00 against Mr. H. C. Roberts for material furnished him for buildings and repairs and other improvements, all of which was placed on your land; while we appreciate the fact that you are hurt financially by Mr. Roberts, we feel that you should pay us for our material or at least allow...